Tuesday, July 30, 2013

A Challenge to Employee Medical Evidence

Medical Expert Evidence in Termination Petition Litigation.

Pennsylvania workers' compensation  cases often feature conflicting medical opinions. Whether it is an original claim for work-related disability or a request for Modification, Suspension or Termination, each party will submit medical expert evidence in support of their respective position.

In a Petition for Termination of workers' compensation benefit payments, the Employer will have the burden of proving that the employee's work-related disability has ceased or that any remaining disability is non-occupational.

Zebrowski v. WCAB (Federal Express Corp.), No. 2326 C.D. 2012, an unreported memorandum opinion of a panel of the Commonwealth Court of Pennsylvania, authored by Senior Judge Friedman on July 11, 2013, addressed this issue regarding medical expert evidence.

Factual & Procedural Background

Employee was injured in 2003, while working as a cargo handler. The NCP recognized a work injury described as "low back area, lumbar sprain". In 2007 Employer filed a Termination petition, alleging a full recovery based upon the medical exam and opinions of Dr. Armand Mendez. He opined any continuing back pain could be explained on the basis of employee's lumbar disc disease. Employee's treating chiropractor since 2005, Marc Cohen, D.C. diagnosed multiple level disc protrusions, degenerative disc disease and chronic right L4 radiculopathy. He did not provide an opinion that employee remained disabled due to her work injury(?).

In a May 2008 decision the WCJ denied the Termination petition... finding Dr. Cohen's opinions were more credible and persuasive than Dr. Mendez regarding the issue of full recovery and ability to return-to-work. [ note the WCJ did not "reject" the credibility of Employer's medical expert].

Employer appealed the WCJ decision.
WCAB decision in June 2009 vacated and remanded the WCJ decision. WHY?

Employee medical expert opinion was based upon assumptions that differed from the established facts, therefore it was a legally incompetent expert opinion. Employee expert believed employee sustained discogenic disease including disc pathology, polyphasic changes and a chronic low back condition as a result of the work injury, when in fact the work injury was described as a lumber sprain.

On remand, the 2010 WCJ order GRANTED the Termination Petition based upon Employer medical expert evidence. The WCJ found Employer medical expert to be credible and persuasive that employee had fully recovered from the work injury.

Employee appealed and the WCAB affirmed the WCJ.

Commonwealth Court Decision

The WCAB and WCJ were correct on remand, a medical expert opinion that fails to [correctly]recognize the work injury is not a legally competent opinion. citing Lookout Volunteer Fire Company v. WCAB (Pa. Cmwlth. 1980), "Where an expert opinion is contrary to the established facts or is based upon assumptions not in the record, it is valueless".

Employee argued that Employer has the burden of proof in a termination petition, therefore the employee's medical evidence is not relevant, where in the first instance the WCJ does not adopt the employer evidence. (Medical evidence presented by the unburdened party can be irrelevant when the burdened party's medical evidence fails to meet this burden of proof. citing Association of Retarded Citizens v. WCAB (Pa. Cmwlth. 1994).

Importantly, the reliance on employee's medical evidence is not a harmless error where that incompetent opinion is used in determining the credibility of employer's medical evidence. Remember, the WCJ originally weighed the two opinions and favored employee's medical expert. If employee's medical evidence was not considered, the original determination may have been different ... and in this case, on remand, the evaluation of evidence was different.


When assessing the prospects for successful appellate review of medical evidence, do not "automatically" assume that the WCJ assignment of credibility is the final determination. In the instant case, it appears the WCJ did not "reject" the employer evidence, rather the WCJ assigned a greater amount of credibility to employee evidence. When employee evidence is found to be incompetent, the only remaining credible opinion supports a finding of termination of work related disability.

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