What Medical Evidence is Needed in a PA Workers’ Compensation Case?

How do you win a Pennsylvania Workers’ Compensation case? By presenting compelling and credible medical evidence! This is the foundation for just about every successful case.

Many Pennsylvania Workers’ Compensation cases will come down to credibility determinations regarding the medical experts. The Workers’ Compensation Judge, when issuing his or her Decision, must credit one physician over the other by concluding that one (or more) is more credible than the other. For example, in a typical case, an injured worker presents the testimony or report of his/her treating doctor, and the insurer/employer presents the testimony or report (if under 52 weeks of disability) of the IME doctor, or a panel physician. The WCJ will conclude that one is more credible than the other- and that is often the deciding factor in a Decision.

The Keys to Presenting Credible Medical Evidence on Behalf of an Injured Worker

First, you want to make sure that your expert is Board Certified! Most physicians will be Board Certified- but you want to ask for the CV of the expert, ahead of a deposition or issuance of a report, to be sure.

Second, if you have a choice, try to use the expert with the most expertise on the subject matter at hand. If you are dealing with a head injury case, and have the option of using a Neurologist vs a Primary Care Physician, that can be a real boost to your cause. You can rest assured that the insurer is likely to have an expert with excellent credentials.

Third, make sure you send all transcripts and medical records (indeed, any relevant evidence) to the expert, ahead of time, so that he/she can review the record prior to your pre- meet, which is often only 15 to 30 minutes. If you do not make it clear that you need the records reviewed ahead of time, many physicians will try to do a “cram session” in the pre meet during which you can only cover so much material.

Fourth, make it easy for your expert to review key parts of the case- use tabs or a highlighter to underscore the mechanism of injury, any previous injuries, etc.

Fifth, make sure your expert understands the complete, relevant pre- injury treatment. One way to lose a case is to have your expert not understand the underlying facts or previous injury history- which can lead a WCJ to find their testimony to be “incompetent”.

Sixth, make sure your expert can testify within reasonable medical certainty. If the expert is equivocal, you will lose. The standard isn’t 100% certainty- just reasonable medical certainty. But they want to avoid terms such as “may be related” or “could be related”. The WCJ will review the testimony as a whole, not just snippets, but this is a critical element.

Seventh, recommend to your expert to concede things that need to be conceded. If a prior MRI shows a herniation, don’t try to argue that it wasn’t. No case will have every single element line up favorably. It’s the totality that matters.

Finally, try to emphasize positive, objective findings- such as MRI or EMG findings that correlate with clinical findings. Insurance company doctors love to paint things as “subjective”- they will repeat that pain is subjective sometimes until they are blue in the face. But if you can show objective findings- i.e., spasm, on the exams, you want to highlight these things. Or, if the complaints are indeed subjective, but very consistent, then stress the consistency.

How Does the Judge Evaluate the Medical Evidence?

To win a case, you need to present unequivocal medical evidence. This doesn’t mean the medical expert needs to render an opinion with absolute certainty. (indeed, how many things in life are absolute anyway?) And yet if the expert opines that an injury “may be” work-related, that’s legally insufficient. The key is that the expert, looking at their opinions as a whole, and not just one sentence or expression, believes there to be a relationship. However, to fulfill the “reasonable degree of medical certainty” standard, an opinion of 51% probability of causation isn’t enough. (see Griffin vs. University of Pittsburgh Medical Center- Braddock Hospital, 950 A.2d 996 (Pa.Super. 2008)). As such, putting all of this together, what’s the real definition of “reasonable medical certainty”? In this attorney’s opinion, it means “the most likely cause”. That doesn’t mean the only conceivable cause- but the most likely, based on the history, examinations, records, etc. This defintition is stricter than a “more likely than not” standard which seems similar to the 51% concept, yet doesn’t go as far as “absolute certainty” which is not tenable.

The Courts will not look for magic words. In most cases, the Workers’ Compensation Lawyers will ask a medical expert, “Based on the examinations, the history taken from the claimant, and your review of the records in this case, what is your opinion, within a reasonable degree of medical certainty as to the cause of diagnoses X, Y, and Z?” Or, based on the same elements, what is your opinion as to whether the Claimant is fully recovered, or what treatment is needed, and what restrictions does Claimant have? There aren’t many depositions where the doctor is challenged to define “reasonable medical certainty”, but I believe it’s important for the medical experts to know this in case they are challenged on it. In PetSmart, Inc. vs. WCAB (Sauter), the Commonwealth Court of Pennsylvania held that a presumption that a condition was work-related, was not sufficient. It’s likely the Claimant’s attorney failed to discuss this topic with the doctor.

Be very careful to educate your medical expert about established facts. For example, if there is a legal Decision from a Work Comp Judge that found a herniated disc at L5-S1, and your doctor contradicts that, his or her opinion will be found to be incompetent. This is a case killer! In your pre-meet with the expert, go over this important concept so that on cross examination, they don’t get lured into contradicting the Judge’s findings.

Finally, make sure the expert reviews medical records from other providers. A medical expert may express an opinion based in part on the medical records/reports that are not part of the record, but upon which the expert customarily relies in the practice of the expert’s profession. (City of Philadelphia v. WCAB (Kriebel), 29 A.3d 762 (Pa. 2011)).

This is just a summary of some important points when presenting credible medical evidence in a PA Work Comp case. It’s not an exhaustive list.

For more information about how to present medical evidence in a Pennsylvania Workers’ Compensation case, call or email a Philadelphia Workers’ Comp Lawyer 7 days a week at (267) 651-7945.