Tips For Testimony At Your Pennsylvania Workers’ Compensation Hearing

These are some general guidelines of mine for clients when they testify in a deposition in a Pennsylvania Work Comp case, or before the Workers’ Compensation Judge. If you have an attorney handling your case, you should speak to them about their suggestions and experience.

-Always tell the truth. This goes without saying but I said it anyway.

-If you don’t know something, say so.

-If you are estimating, say so.

-If you do not understand the question, ask the attorney or Judge to repeat it in a different way- there is no video of your testimony and the Judge may not remember a look of doubt on your face, instead, the Judge will be reading words in a transcript. Words matter!

-Look the Judge or attorney in the eyes when you are answering the questions. This shows a sincerity.

-Dress in a respectful way- cut off jeans and a tank top will show a brazen disregard for the Court.

-Review your medical records ahead of time to refresh your memory as to the timeline of events especially any past relevant history of a similar injury.

-If you plan on referring to your own notes while testifying, make sure your attorney has a copy well ahead of the testimony so that he or she can give a copy to opposing counsel- this is out of fairness and the rules of evidence.

-Do not get combative with the Judge or counsel; even if you have a right to be mad or upset, if you show such emotions it can be perceived as a defensiveness and this may make the Judge skeptical. This is easier said than done.

-Get to the point and try not to repeat yourself.

-Do not start answering the question before the attorney is finished asking it- even if you know what he/she is going to say- the court reporter and Judge will be quite annoyed if you talk over another person.

-Be specific- if you are asked about your symptoms and you merely state you are in pain, that may not sound convincing. Instead, think about how you would articulate your pain- it is a burning pain? Is it constant or does it come and go? Does it radiate? Sometimes, keeping a diary can be useful in the weeks leading up to your testimony so that you can pinpoint the symptoms and how they make you feel. Most people struggle with articulating their symptoms as they become overwhelmed with emotion when talking about them. Thinking about this issue ahead of time can go a long way.

Make sure you have a Certified Specialist In PA Work Comp Law (like me!) representing you! Pennsylvania Workers’ Compensation has become complex and riddled with technicalities and confusing rules- having a specialist will likely increase your odds at a favorable outcome.

For more information about Pennsylvania Workers’ Compensation, call or email 7 days a week 215-206-9068 or MyPhillyWorkersComp@Gmail.com

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Does A Medical Expert’s Mere Offering Of Alternative Analyses With Respect To Causation Of A Pennsylvania Work Injury Render The Expert’s Testimony Equivocal?

No! In Manitowoc Co., INC. v. Workers’ Compensation Appeal Board (Cowan), No. 472 C.D. 2013, the Commonwealth Court of Pennsylvania correctly determined that the mere offering of alternative theories as to how an injured worker died after a fall didn’t render that opinion equivocal.

This matter involved a fatal claim petition stemming from a fall from a crane platform without harnesses. (remember- in workers’ compensation fault is not an issue) The platform was about 6 feet from the ground and had no handrails. While in a crouched position, Claimant said to his son/co-worker, “Hold it. Wait a minute.” The son saw his father’s eyes roll back, and his father fell off the platform. Claimant’s medical expert, Thomas R. Stoner, D.O., board certified in internal medicine, opined that the death was a result of falling on his head and that Claimant didn’t experience cardiac arrest at the time of the fall and that he couldn’t be sure of the Claimant’s state of consciousness at the time of the fall because he was not hooked up to any monitors.

Employer presented the testimony of Paul M. Shipkin, M.D., a board certified neurologist, opined that Claimant lost consciousness before he fell because he went limp and fell without trying to catch himself, and that based on his pre-existing mitral valve disease and the fact that he turned blue quickly, that it was highly possible that a cardiac episode cause Claimant to lose consciousness.

Both medical experts believed that Claimant suffered brain death. But Dr. Stoner disagreed with Dr. Shipkin that a cardiac event was the primary cause of the death because Claimant had no cardiac arrhythmia while he was hospitalized until he was disconnected from life support.

Employer also presented the testimony of Joseph Gascho, M.D., a board certified cardiologist who opined that Claimant had cardiac arrhythmia and that was the cause of the loss of consciousness.

The Workers’ Compensation Judge granted Claimant’s Petition, crediting Dr. Stoner’s opinions that Claimant was injured in the course of employment and that the death was caused by the fall and resulting head trauma. Employer appealed, alleging that Dr. Stoner’s testimony was equivocal because he offered alternate theories regarding the exact cause of the death. The Workers’ Compensation Appeal Board disagreed and so did the Commonwealth Court.

To succeed on a fatal claim petition, claimant has the burden of proving that the employee sustained a work-related injury and that the injury was a substantial, contributing cause of the employee’s death. Where the causal connection between the work injury and the death is not obvious, the claimant must present unequivocal medical evidence establishing the connection.

In this case, at the hearing, Dr. Stoner set forth four possible explanations (see Decision for more detail) regarding the connection between the fall and the death- however, under each scenario, Dr. Stoner’s ultimate conclusion was that the fall and blunt-force trauma caused Claimant’s death.

The mere offering of alternate analyses regarding a work injury does not render the testimony equivocal. To be unequivocal, the Court noted, “the expert need only state that in his or her professional opinion, the result in question came from the assigned cause”. (citing Corcoran v. Workers’ Compensation Appeal Board (Capital Cities/Times Leader), 725 A.2d 868, 872 (Pa.Cmwlth. 1999). The Commonwealth Court found that expert testimony is competent “even if the witness admits to uncertainty, doubt, reservation, or a lack of information with regard to certain medical details, as long as the witness does not recant the opinion first expressed.”

This a good decision for the claimant’s bar. Medicine is not an exact science and doctors have to extrapolate from the data given to them.  In this case, Dr. Stoner, while having different theories about the specific chain of bodily events that caused the death, kept coming to the same conclusion, that it was the fall and blunt-force trauma that caused the death. The Commonwealth Court Decision here affirms the idea that a medical expert does not have to be 100% certain as to his or her opinion- indeed, the standard is “reasonable medical certainty” and the WCJ, Appeal Board, and Commonwealth Court also correctly found that Dr. Stoner’s opinion was unequivocal as he never recanted his opinion that the fall caused the death.

For more information about fatal claim petitions in Pennsylvania Work Comp, evidence, medical testimony, or just general PA Work Comp Info, call or email Certified PA Work Comp Attorney Michael W. Cardamone at 215 206 9068 or mcardamone@krasno.com

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How To Challenge Work-Related Diagnoses In A Pennsylvania Workers’ Compensation Case

If you are an injured worker in Pennsylvania (or even if you live outside of PA, but were injured in PA and thus subject to the PA Work Comp Act), you will want to look at the Notice of Compensation Payable– this is a key document that is issued and filed by the work comp carrier or third party administrator, which admits that a work injury took place and delineates the nature of the injury, among other information. This document should be filed within 21 days of the date you gave notice of your work injury. As such, adjustors usually don’t have much in the way of medical records. They may have a report from a panel doctor claiming the injury is a “low back sprain or strain”. The Notice of Compensation Payable is a unilateral document, filed by an adjustor, not an injured worker or a doctor, and it is issued quickly after an injury is accepted as compensable- and therefore, it almost always lists a generic diagnosis such as “strain”, “sprain”, or “contusion” of whatever body part is at issue.

The Notice of Compensation Payable (NCP) is a controlling document in a Pennsylvania Work Comp case. This means that it tells the parties what the obligation is for the insurer until otherwise modified by Stipulation, Supplemental Agreement, or Court Order. If your Notice of Compensation Payable says that your injury is a low back strain, but your doctor’s records reflect a herniation at L5-S1, then the insurer will likely win an argument before a Work Comp Judge that it does not have to pay for the treatment because the Notice of Compensation says low back strain.

So, how do you fix this seemingly unfair situation? It depends. If the insurer is paying the medical bills, despite the mismatch between what the Notice of Compensation Payable says and what your doctor’s records reflect, then it is perfectly fine to let things remain that way. But if the insurer is denying payment, then call an experienced and Certified PA Workers Comp Lawyer to pursue the proper diagnoses. This is accomplished by filing a Petition to Review which is heard by a Work Comp Judge over a series of hearings, with medical evidence and testimony from the injured worker presented. There are many complicated rules of evidence and procedural issues involved in litigating a PA Workers Comp case, so it is strongly recommended to seek counsel.

Every case is different. I cannot stress this enough. I’ve seen some cases where the accepted injury is a “low back contusion” on the NCP, but the treating doctor’s records reflect multiple disc herniations, radiculopathy, and chronic pain and the insurer pays everything with no dispute. But I’ve also seen cases where they deny treatment after treatment causing a Petition to Review to be litigated to set the record straight.

It is important to note that the mere filing of a Petition to Review doesn’t mean you win. The insurer will likely set up an Independent Medical Exam to see if they can challenge the work-relatedness of the diagnoses at issue, and the Work Comp Judge will ultimately have to decide which doctor’s opinions are more credible if the parties cannot come to an agreement on the work-related diagnoses. Make sure to confirm with your physician that they are board certified as credentials can become important when a Work Comp Judge is reviewing the matter.

For more information about Pennsylvania Workers Comp and how to get you true injuries recognized, call or email me 7 days a week at 215-206-9068 (direct dial) or mcardamone@krasno.com

Nothing on this blog shall be considered as legal advice. It is general information about PA Workers Comp. For advice about your situation, please contact me.