As attorneys who limit their practice to representing people who have been injured at work in PA, we often have the misfortune to see a potential new client who has already lost his or her case with another attorney.
Previously, in a blog entry, we have discussed the appeals process in Pennsylvania workers’ compensation. As discussed in that blog entry, often there is nothing we can do to help the injured worker at that point. The Workers’ Compensation Appeal Board (WCAB) can usually only disturb the opinion of a Workers’ Compensation Judge (WCJ) if the WCJ committed an error of law. Simply disagreeing with the WCJ is not sufficient.
This principle was tested somewhat recently in the case of City of Pittsburgh v. Workers’ Compensation Appeal Board (Wilson), decided by the Commonwealth Court of Pennsylvania. Here, the injured worker was hurt and the Notice of Compensation Payable (NCP) described the injury as “thoracic strain.” The injured worker sought to amend the description of the injury to include a cervical strain, an aggravation of her pre-existing cervical degenerative disc disease and a rotator cuff tear. The workers’ compensation insurance carrier agreed to accept the cervical strain, but refused to accept the other conditions.
In the ensuing litigation, the medical expert offered by the injured worker did not testify about the neck. The doctor hired by the workers’ comp insurance carrier, for an “Independent Medical Examination” (IME), had drafted a report stating that the work-related injury did aggravate the pre-existing degenerative condition in the neck. In his deposition, however, the IME doctor stated that he meant to say “did not” and the opinion stated in the IME report was merely a typographical error.
The WCJ found the true opinion of the IME doctor was that stated in the IME report and granted the Review Petition, amending the description of injury to include both the aggravation of her pre-existing cervical degenerative disc disease and the rotator cuff tear. On appeal, the WCAB affirmed, finding that, as noted above, determinations of credibility of any witness, in whole or in part, was within the sole discretion of the WCJ.
Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed the decision of the WCJ. The Court found that the only evidence supporting the aggravation of the degenerative condition in the neck was that in the initial IME report, which was then recanted in the deposition of the IME doctor. A recanted opinion, said The Court, is, as a matter of law, equivocal, and cannot be used to support a finding of fact in the decision of a WCJ. The Court went on to point out that the sentence in the report at issue is contrary to the remainder of the IME report (which, to this writer, appears suspiciously close to reviewing determinations of credibility, which, of course, is not permissible upon appeal). The Court also noted that the report, itself, is “hearsay” and not admissible; this is the reason medical experts testify at depositions.
Though this appears close to the line of distinguishing “error of law” from “finding of fact,” in due respect to The Court, the result of the decision is not unreasonable. Given the odd facts (typically, the injured worker’s medical expert would support the petition at issue), however, we anticipate this decision will not be terribly damaging to the rights of the injured worker in PA.