Who better than the injured worker to know the pain that person is feeling? At this point in medical science, we do not have a “pain meter.” Doctors can examine a person, and obtain diagnostic testing, such as x-ray, MRI and CT scan, but, ultimately, doctors can only tell us whether they can find an objective basis for a person’s pain. No doctor could credibly state whether a person has pain.
This becomes an issue in PA workers’ compensation cases. A Workers’ Compensation Judge (WCJ) must decide whether to believe an injured worker, when he or she testifies regarding the symptoms they suffer. At least, that is how a reasonable person could assume the system works.
In reality, in PA, according to a recent decision by the Commonwealth Court of Pennsylvania, the testimony of the injured worker, without matching testimony from a physician, cannot defeat a petition filed by the workers’ compensation insurance carrier to modify or suspend the injured claimant’s workers’ compensation benefits. In World Kitchen, Inc. v. WCAB (Workers’ Compensation Appeal Board), the Independent Medical Examiner (IME, otherwise known as Defense Medical Examiner (DME)), released the injured worker to full time work.
The injured worker tried the job in good faith, but she was not able to work full time due to continuing back pain. The WCJ decided that the workers’ compensation insurance carrier had to pay workers’ compensation benefits based on the actual wages earned by the injured worker. The Commonwealth Court of PA reversed the WCJ, finding that the Petition to Modify should have been granted. The Court reasoned that the testimony of claimant, that she had to leave work on occasion due to ongoing back pain, was not sufficient by itself to defeat the Petition. Since the claimant presented no medical evidence (deposition of a doctor) of her own, she must lose.
As the dissent in the case pointed out, the testimony of an injured worker by itself IS enough to reinstate workers’ comp benefits in PA, so it is silly to say such testimony is not enough to keep benefits going.
This case highlights the dangers of an injured worker litigating a workers’ compensation case in Pennsylvania without the representation of an experienced PA workers’ comp attorney. Not only did this injured worker not know a medical deposition was necessary to win the case, in all likelihood, the injured worker lacked the funds to pay for a medical deposition. Many workers’ compensation firms, including Brilliant & Neiman, LLC, never charge their clients for the costs of litigating a case (which can easily run more than $5,000).