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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.
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)).
For more information about how to present medical evidence in a Pennsylvania Workers’ Compensation case, call or email us 7 days a week at (215) 206-9068