AMERICAN BAR ASSOCIATION SECTION OF LABOR AND EMPLOYMENT LAW WORKERS COMPENSATION COMMITTEE MID-WINTER MEETING

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1 AMERICAN BAR ASSOCIATION SECTION OF LABOR AND EMPLOYMENT LAW WORKERS COMPENSATION COMMITTEE MID-WINTER MEETING WYNDHAM CASA MARINA RESORT, KEY WEST, FLORIDA MARCH 1-4, 2005 MEDICAL REPORTS v. DEPOSITIONS v. LIVE TESTIMONY: WHICH WORKS BEST IN OUR SYSTEM? by Andrew E. Greenberg, Esquire 1 I. INTRODUCTION The administrative practice of workers compensation litigation necessarily varies from jurisdiction to jurisdiction, with different burdens of proof, different methods for compensation, and different administrative practices and procedures. Those variables necessarily impact upon the workers compensation litigator s strategy while he or she contemplates how to establish or defend a claim for benefits under the particular state workers compensation law. Regardless of the state forum in which the litigator applies his or her workers compensation trade, one aspect of the practice that is a constant and that makes the process so interesting is the wide variety of medical issues that one encounters on a dayto-day basis. Indeed, the workers compensation litigator handles everything from hearing loss to acute depression to sick building syndrome to an assortment of orthopedic/neurological conditions. It is respectfully submitted that in addressing such a broad array of injuries and diseases, the workers compensation litigator must develop not only a working knowledge of symptoms, etiologies and the vast medical lexicon, but must constantly assess how the medical proof he or she has compiled should be presented to the fact finder. Indeed, since the medicine of the case is so fundamental to workers compensation practice, strategizing medical proof is always an important consideration for any lawyer advancing or defending a workers compensation clam. These materials seek to amplify the subject matter of our Panel s discussion by presenting a brief survey of how medical proof is presented under the Pennsylvania Workers Compensation Act and its attendant regulations. 1 Mr. Greenberg is a founding partner in the Pennsylvania firm, The Chartwell Law Offices, LLP. He can be contacted at agreenberg@chartwelllaw.com. 1

2 II. THE NEED FOR UNEQUIVOCAL MEDICAL PROOF OF CAUSATION In Pennsylvania, a claimant seeking benefits under the Act bears the burden of establishing a causal connection between the alleged physical or emotional condition and his or her employment, through the presentation of unequivocal medical proof, where the connection is not obvious. 2 More specifically, where the connection between the claimant s work and the injury he or she has alleged is not readily apparent 3, claimant s counsel must present expert medical evidence establishing that in the professional opinion of the expert witness, the injury or condition at issue did, in fact, result from the work-related cause alleged. 4 Conversely, an expert medical opinion declaring that the alleged injury could have or might have or possibly resulted from the work experience at issue, will be declared incompetent or legally insufficient to support an award of benefits. 5 Where, however, the expert uses phrases such as most likely or probably or somewhat, his or her opinion will not be necessarily be ruled equivocal provided that when viewed in its entirety the expert s assessment is in fact unequivocal. 6 III. THE NEED FOR LEGALLY COMPETENT MEDICAL PROOF Not only must the medical expert offer an unequivocal opinion, he or she must present an opinion based upon the expert s own knowledge of the facts at issue or upon the assumed truth of testimony of other witnesses or a combination of the foregoing sources of information, in order to be legally competent. 7 An expert medical opinion will not be viewed as legally insufficient simply because of the expert s failure to utter the magic words that might normally be expected in the particular case such as within a reasonable degree of medical certainty. 8 2 Weaver v. Workmen s Compensation Appeal Board (Pennsylvania Power Company), 87 Pa. Cmwlth. 428, 487 A.2d 116 (1985). 3 For example, where after lifting a 50 pound box, the employee develops an acute onset of excruciating low back pain that he reports immediately to his supervisor. Davis v. Workers Compensation Appeal Board (UPS), 92 Pa. Cmwlth. 294, 499 A.2d 465 (1985). 4 Lewis v. Commonwealth, 508 Pa. 360, 498 A.2d 800 (1985) citing Menarde v. Philadelphia Transportation Company, 376 Pa. 497, 103 A.2d 681 (1954). 5 Bud v. Workers Compensation Appeal Board (Paul Riggle & Sons), 718 A.2d 901 (Pa. Cmwlth. 1998). 6 Michaelson v. Workmen s Compensation Appeal Board (R.R. Leininger & Son), 126 Pa. Cmwlth. 542, 560 A.2d 306 (1989). 7 Ranieli v. Mutual Life Insurance Company, 271 Pa. Super. 261, 413 A.2d 396 (1979). 8 Williams v. Workmen s Compensation Appeal Board (Montgomery Ward), 127 Pa. Cmwlth. 587, 562 A.2d 437 (1989). 2

3 And, the testimony of a medical witness will not be deemed legally incompetent simply because the witness offers opinion testimony addressing a medical issue beyond his or her particular area of specialty. 9 IV. PROVISIONS ADDRESSING SELF-AUTHENTICATION OF MEDICAL RECORDS Section of the Special Rules of Administrative Practice and Procedure Before Judges provides, in pertinent part, that records addressing treatment, results of mental or physical examinations, hospitalizations, testing, and the like obtained through the deposition of a custodian of records - in the form of a written Affidavit of the custodian without interrogation - shall be deemed authenticated and admissible of record in the same manner as if the deponent appeared before the Judge and testified to the authenticity of the records or items. Mere authenticity, however, does not assure that the records obtained will either be admitted or, most importantly, will support a judge s findings of fact since judges customarily will not admit medical records where the disability claim at issue is one seeking disability compensation for a period of 52 weeks or more. That is true, primarily because of the rather unwieldy constraints attendant to now standard application of the Walker Rule, also known as the residuum rule set forth in Walker v. Unemployment Compensation Board of Review, 27 Pa. Cmwlth. 367 A.2d 366 (1976) and Tynan v. Workmen s Compensation Appeal Board (Associated Cleaning Consultant and Services, Inc.), 162 Pa. Cmwlth. 393, 639 A.2d 856 (1994). That rule of administrative practice in Pennsylvania provides, in essence, that hearsay evidence, even if not properly objected to, is not competent evidence necessary to support a finding issued by the workers compensation judge. Although in 1996, the Pennsylvania Legislature amended Section 422(c) of the Act to include language seemingly aimed at eliminating what many saw as the inherent inflexibility of the residuum rule, the courts have continued to apply Walker. 10 With respect to hospital records, however, Section 422(b) of the Act provides a great deal of flexibility: the records kept by a hospital of the medical or surgical treatment given to an employe (sic) in such hospital shall be admissible as evidence of the medical and surgical matters stated therein. 9 CPV Manufacturing v. Workers Compensation Appeal Board (McGovern), 805 A.2d 653 (Pa. Cmwlth. 2002). 10 Section 422(c) provides in pertinent part that where any claim for compensation issued before a workers compensation judge exceeds fifty-two weeks of disability, a medical report shall be admissible as evidence unless the party that the report is offered against objects to its admission. See Rox Coal Company v. Workers Compensation Appeal Board (Snizaski), 570 Pa. 60, 807 A.2d 906 (2002). 3

4 Accordingly, there are instances where medical proof can be presented in the form self-authenticating, legally sufficient documentation. V. ADMISSIBILITY OF MEDICAL RECORDS IN CONNECTION WITH THE PROSECUTION OF MINOR CLAIMS Section 422(c) of the Pennsylvania Act provides in pertinent part as follows: Where any claim for compensation issued before a workers compensation judge involves fifty-two weeks or less of disability, either the employe (sic) or the employer may submit a certificate by any healthcare provider as to the history, examination, treatment, diagnosis, cause of the condition and extent of disability, if any, sworn reports by other witnesses as to any other facts and such statements shall be admissible as evidence of medical and surgical or other matters therein stated and findings of fact may be based upon such certificates or such reports (emphasis supplied). The courts have ruled in Pennsylvania that the above-quoted language describes the period for which the claimant seeks disability or indemnity compensation, meaning that where the injured worker seeks less than fifty-two weeks of disability but seeks continuing medical coverage for a period of fifty-two weeks or longer, medical certificates will be admissible under the provision. Although the language of Section 422(c) does not explain precisely what constitutes a medical certificate or how a medical certificate should be prepared, the Commonwealth Court has suggested that the document should include an explanation of the expert s factual basis/medical reasoning supporting his or her conclusion and should include more than simply a perfunctory conclusory statement by the expert. 11 There apparently is no need, however, for the medical certificate to address all topics referenced in Section 422(c) in order to pass legal muster. Rather, the Commonwealth Court has explained, in order to satisfy the requirements of the provision, the certificate must be prepared by a suitable health care provider and must address the material medical issues in dispute between the parties. 12 VI. PRESENTING LIVE MEDICAL TESTIMONY It is very uncommon in Pennsylvania for a litigant to present the testimony of an expert medical witness live before the assigned workers compensation judge. Judges will, on occasion, travel to the medical expert s office to preside over a medical deposition if the judge feels that the case warrants his or her involvement or the 11 See Kensington Manufacturing Company v. Workers Compensation Appeal Board (Walker), 780 A.2d 820 (Pa. Cmwlth. 2001). 12 The Budd Company v. Workers Compensation Appeal Board (Kan), 858 A.2d 170 (Pa. Cmwlth. 2004). 4

5 presenting attorney feels that having the judge present will bolster his or her case. On occasion, where the case involves a sophisticated medical issue or where the expert witness is unknown to the judge, the judge will request that the presenting attorney bring the expert to a formal hearing. It is very unusual, however, for the expert to travel to a formal hearing before the judge because of inevitable scheduling problems that it can cause and because of the excessive cost that experts normally charge for such an appearance. VII. THE WRITTEN REPORT V. EXPERT MEDICAL TESTIMONY Whether the practitioner chooses to submit a medical report or the testimony of a medical expert - either live before the WCJ or by deposition - depends upon a number of factors: A. Advantages Of The Written Report 1. The written analysis of the medical expert is not subject to crossexamination by opposing counsel. 2. The possibility of failing to address a particular issue such as causation, diagnosis, disability, prognosis, etc. is reduced; 3. The WCJ is permitted to review the thoughts and conclusions of the medical expert without the kind of background noise that normal litigation situations engender such as the placement of objections, peripheral interaction between counsel and transcription irregularities; 4. The cost of procuring an expert medical report will normally be dwarfed by the cost of presenting the testimony of an expert live or by deposition that has become a more pronounced factor in Southeastern Pennsylvania of late; 5. The process of scheduling the testimony of an expert medical witness will be eliminated, thereby reducing the cost of litigation while expediting the disposition of the hearing process; and 6. In Pennsylvania, an expert witness retained by the opposing party cannot be compelled to testify against that party, through the issuance of a subpoena or Notice of Deposition. 13 On the other hand, it is apparently permissible for claimants counsel in Pennsylvania to submit of record an 13 Spino v. John S. Tilley Ladder Company, 448 Pa. Super. 327, 671 A.2d 726 (1996) citing Jistarri v. Nappi, 378 Pa. Super. 583, 549 A.2d 210 (1988). 5

6 unfavorable IME report of the employer or insurer in order to demonstrate that the claim at issue was unreasonably contested; 14 B. Advantages Of Expert Medical Testimony 1. The ability to testify affords the medical expert greater flexibility in describing the nature and cause of the claimant s alleged condition and/or the reasons why the opposing expert s analysis might be misleading or inaccurate it also allows presenting counsel to submit to a suitable hypothetical question to the expert where the law requires that that that be done in order to establish a legally sufficient causation opinion; 2. The testimony of the medical expert very often enhances the persuasiveness of the expert s analysis by permitting the expert a greater amount of space to explain his or her reasoning; 3. The opportunity to testify allows the medical expert to respond to issues or concerns not contemplated at the time the expert report was prepared in Pennsylvania there is a great deal of flexibility in that regard, because the medical expert is allowed to testify beyond the scope of his or her expert report, when presented in a workers compensation proceeding 15 ; 4. The diagnoses and opinions of certain health care providers, such as chiropractors and psychologists, may not be admissible by way of written report - in Pennsylvania amendments to the Act have made it possible for litigants to submit reports prepared by a wider variety of health care providers than in the past; 5. Ironically enough, sometimes, opposing counsels cross-examination will unwittingly afford the expert an opportunity to dispel certain notions or propositions that the opposing counsel might wish to exploit through his or her expert; and 6. Some judges prefer to review deposition testimony and some even prefer hearing the testimony live. VIII. CONCLUSION After first reviewing the legal parameters of presenting expert medical proof in his or her particular jurisdiction, the workers compensation litigator must ultimately 14 Higgins v. Workers Compensation Appeal Board (City of Philadelphia), 854 A.2d 1002 (Pa. Cmwlth. 2004). 15 Stech v. Workmen s Compensation Appeal Board (MJS Equipment, Co.), 678 A.2d 1243 (Pa. Cmwlth. 1996). 6

7 balance the cost of presenting expert medical evidence - either through testimony or report - against the effectiveness of that each method of presentation necessarily entails. While there are certain guidelines to consider and certain anecdotal rules of thumb to keep in mind, it is probably most accurate to observe that the final determination as to how the litigator should proceed, depends upon the peculiar facts of the individual case. 7