Keys to Presenting Effective Medical Evidence in Pennsylvania Workers’ Compensation
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 credibile 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.
What are 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 highligther 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- ie, spasm, on the exams, you want to hightlight these things. Or, if the complaints are indeed subjective, but very consistent, then stress the consistency.
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.
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