Thursday, June 20, 2013

Evaluating Employee's Medical Evidence

Some factors to consider in evaluating the strength of Employee Medical Evidence.

In workers' compensation claims, one must evaluate the strength of the medical evidence offered by Employee. This assessment arises at several points in the history of a work-related disability claim.
At the outset, one must assess the availability of medical evidence in support of the Employee's burden to establish all of the elements of a compensible claim, including causation and disability.

At subsequent points in the claim history, one may assess the strentgh of evidence regarding the extent and/or duration of disablity. In the "Review" petition litigation, one must assess the medical evidence offered to "enlarge" the scope of workers' compensation liability for aditional medical conditions, alleged to arise from the original work injury.

In Institute for Cancer Research v. WCAB (McDermott), No. 1878 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Judge McCullough on June 18, 2013, several of these medical evidence issues were addressed.

Factual & Procedural Background

Employee sustained a work related knee injury in the course of his duties as a housekeeper, in march 2007. Employer issued a NCP which described the injury as "left knee sprain".
Employee filed a Petition to Review the description of injury, to include subsequent medical diagnoses of psychological injuries, described as an adjustment disorder with an anxious and depressed mood, together with a chronic pain syndrome.

Employee testified he did not return to work after his initial injury. He underwent six (6) surgeries, including a total knee replacement procedure. The last surgery was to correct nerve damage at the bottom of his foot. Despite this treatment he continued to have severe pain. He sought the care of a psychologist for the dramatic effects upon his life. His physician diagnosed chronic regional pain syndrome (CRPS)[ the "new" diagnosis used instead of reflex sympathetic disthropy (RSD).]

The WCJ decision found Employee and his medical witness credible and amended the NCP to include the psychological diagnoses.

Employer appealed and the WCAB affirmed the WCJ decision.

Commonwealth Court affrmed the grant of the Review petition.

Employer argued:

1.   The Employee medical expert, a psychologist was not legally competant to render a medical diagnosis of chronic pain,

2.   The WCJ decision was not based upon substantial competant evidence as Employee medical expert had an inadequate medical history and did not review any records of the Employee's treating physicians,

3.   Employee medical expert testimony was inadmissible as there was an agreement with Employee counsel that the witness would recover 80% of his healthcare provider bills only if employee prevailed in the litigation.

Commonwealth Court Decision and Reasoning:

1.   Employee medical expert, a psychologist was legally competant to testify that employee suffers from a chronic pain syndrome and that this condition was a direct result of the work injury.
Past appellate decisions have allowed a licensed clinical psychologist to render an opinion regarding a psychological injury similiar to Employee's; that is, a "psycho-physiologic" reaction caused by organic musculoskeletal-type pain. citing Serrano v. WCAB (Chain Bike Corp.) 553 A.2d 1025 (Pa. Cmwlth. 1989).

In Serrano the worker sustained internal injuries to his chest and abdominal region when he was compressed between two machines. After surgery for the physical orthopedic problems, he continued to have severe pain and developed psychological symptoms. These sypmtoms were diagnosed as a chronic post-traumatic stress disorder with acute depression and also a psycho-physiologic reaction resulting from organic musculoskeletal-type pain. His clinical psychologist testified these conditions were the direct result of the work injury. On appeal, this testimony was deemed legally competant.

2.   Employee medical expert was legally competant to provide an opinion of disability and causation, even though he did not have a complete medical history of Employee and did not review any medical records of the treating physicians.
Past appellate decision have held medical expert testimony is not legally competant where the opinions are based upon inaccurate or false information.
see: Newcomer v. WCAB (Ward Trucking Corp.) 692 A.2d 1062 (Pa. 1997).

Where the medical expert does not review all of the medical records, that fact goes to the weight to be given to the witness testimony by the judge, that is the level of credibility of the testimony, not the legal competancy of the testimony. Here there was a question as to the extent and accuracy of the employee history of treatment for anxiety prior to the wotk injury, that was available to this medical expert..

3.   Employee medical expert was legally competant to testify despite an agreement with Employee legal counsel that counsel would pursue a claim for payment of the provider's medical bills in connection with the review petition and counsel would have a 20% contingent fee agreement of this amount. A term of this agreement was that the witness was not requesting employee pay any fees for treatment. [the medical bills were denied as unrelated to the work injury].

Commonwealth Court distinguished this agreement regarding recovery of the charges for medical provider treatments from the situation where the expert fee compensation to a witness is contingent upon the outcome of the case. This agreement did not render the expert testimony inadmissible, but the WCJ could use this as a factor in assessing the credibility of the witness, as the witness would have a financial incentive in the outcome of the case.

Practice Pointers:

1.   On appeal, the review of the medical evidence in support of the WCJ decision, must be challenged on the basis of its "competancy" as the WCJ has the right to accept or reject the testimony of any witness, in whole or in part, including medical witnesses. That is, the WCJ is the arbitor of credibility issues and the weight to be assigned to any witness testimony.

2. In litigation before the WCJ, the employer must assert the above "shortcomings" in employee's medical evidence. A determination of credibility is difficult (impossible) to revise on appeal. Make your best argument before the WCJ.

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