Monday, June 24, 2013

...and now... Evaluating Employer Medical Evidence for Termination

An Employer challenge to the "competency" of medical evidence on behalf of Employee in a Petition to Review the Notice of Compensation Payable to expand work comp liability for an accepted work injury, was the subject in a recent post (June 20, 2013). That employee was successful in enlarging the description of a work-related knee injury to include psychological diagnoses arising from chronic pain symptoms.

What's good for the goose...
Now We have an Employee challenge to the "competency" of the
Employer medical evidence in a Claim/Termination petitions litigation.

Cadena v. WCAB (Acme Markets Inc./SuperValu), No. 1211 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania authored by Judge Leadbetter on June 20, 2013 discussed these medical evidence issues.

Factual & Procedural Background

Employee sustained a low back injury in August 2008.
Employer issued a "Medical Only" NCP, describing a strain to the lumbar spine.
Employee sustained a 2nd low back injury in September 2008.
Employer issued a 2nd "Medical Only" NCP, describing a sprain/strain to the lumber spine.
Employee worked in a modified duty capacity after each injury.

Employee filed a Modification petition alleging his condition had worsened and he now experienced a loss of earnings as of July 2009.
Employee also filed 2 claim petitions.
Employer filed a Termination petition, alleging a full recovery as of January 2010.

Employee medical expert, Amir Katz M.D. opined employee sustained a herniated disc at L4-5 with bilateral lower extremity radiculopathy and remained disabled

Employer medical expert, Philip Perkins M.D., an initial treating physician, opined employee could return-to-work with light duty restrictions as of his last exam in July 2009.

Employer medical expert, Robert Mauthe, M.D. performed an IME and opined employee had fully recovered from the "lumber strain" as of January 2010 and could return-to-work without limitation.
Dr. Mauthe also opined employee was capable of modified duty in May 2009.

Employer safety manager testified regarding August 2009 offers for employee to return-to-work in accord with Dr. Perkins (modified duty) or Dr. Mauthe (full duty).

WCJ Decision:
Rejected Employee medical expert regarding the extent of each work injury,
Rejected Employee evidence that he was unable to perform available modified work in August 2009.
Credited Employer medical expert testimony that injury was limited to lumbar strain,
Credited Employer medical expert that employee had fully recovered as of January 2010 exam, from the August injury,

Rejected employee assertion he had a compensible wage loss, as he worked modified duty and that work remained available to him.

The Claim petitions were granted and wage loss benefits were "suspended" as of each date of injury.
Employee Modification petition was denied.

Employer Termination petition was granted as to August injury BUT denied as to September injury.

Employee and Employer appealed.

Employee pro se appeal did not preserve several issues later argued by his "new" legal counsel.
Counsel filed an amended appeal. WCAB limited its review to the issues raised in the pro se appeal.

Employee argued the WCJ erred:

1.   in accepting Dr Mauthe's description of "lumbar strain",
2.   in accepting Dr Mauthe's opinion he fully recovered from the August injury,
3.   he argued, diagnostic studies, including lumber MRI's, EMG/NCV studies and lumber discogram, document a herniated disc at L4-5 with radiculopathy,
4.   Dr Mauthe was not competent to suggest employee was exaggerating his symptoms as he lacks specialized training to make that assessment,
5.   Dr Mauthe was equivocal as he initially stated employee suffered from a disc syndrome, not a lumber strain and later revised his opinion,
6.  Dr Mauthe was not competent as he did not review the films from the July 2009 lumber MRI.

Commonwealth Court rejected Employee's arguments.

A. The WCJ is the ultimate fact finder and questions of credibility and weight assigned to the evidence are for the WCJ. "The WCJ may accept the testimony of any witness, in whole or in part", citing
Jenkins v. WCAB (Woodville State Hospital) (Pa. Cmwlth. 1996).

B. The WCJ acceptance of one medical opinion over that of another medical opinion is not the basis for a finding of reversible error. Jenkins.

C. Dr. Mauthe testified unequivocally that employee had fully recovered.

D. Dr. Mauthe's review and consideration of diagnostic test results goes to the weight and credibility of his opinions, not to his competency as a witness.

E. Dr. Mauthe initially diagnosed a disc syndrome, BUT he changed his opinion when the discogram did not confirm a disc as the source of employee's complaints.

F. Dr. Mauthe explained the positive EMG/NCV results were not corroborated by his physical exam findings OR by the MRI's and Discogram results.

G. Regarding Employee argument that Dr. Mauthe did not have specialized training or qualifications to opine whether he demonstrated signs of symptom magnification, the Court noted Dr. Mauthe is a Board-Certified in the specialty of Physical Medicine and Rehabilitation, and he provides patients non-surgical treatment of pain. He is responsible for the diagnosis and treatment of injuries.  Employee waived this issue as it was not preserved in his initial appeal.

However, the Court noted that employee has not identified any legal or medical authority which states that a board-certified specialist is not competent to render an opinion regarding signs of symptom magnification. "Indeed, this skill seems intrinsically related to the proper diagnosis and treatment of a disorder". slip opinion at page 8.

Practice Pointers:
i. This opinion demonstrates the necessity to have a medical expert who is familiar with the treatment and diagnosis of work injuries.
ii. This opinion also demonstrates the necessity of retaining legal counsel to properly draft an appeal and preserve all relevant issues.
iii. The significance of IME expert review of all medical diagnostic test results is demonstrated. The medical expert can support their opinions, based upon physical examination, with test results that corroborate their "theory" of the case.
iv. Get a complete medical record of all diagnostic test results for review by your IME expert. If requested by your expert, get the actual films, in addition to type-written reports.

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