Contradictory Medical Testimony Cannot Support Finding of Fact by Workers’ Comp Judge

When a PA workers’ compensation claim is denied by the insurance carrier, it is up to the injured worker to file a Claim Petition. In litigating a Claim Petition before a Workers’ Compensation Judge (WCJ), the injured worker bears the burden to prove that he or she suffered an injury, which was related to his or her job, and was rendered disabled by such injury.

It is the WCJ who makes the critical determination of who is credible in this litigation. Neither the Workers’ Compensation Appeal Board (WCAB), nor the Pennsylvania system of Courts, can substitute their opinions on credibility of witnesses. However, the testimony of the credited witness must be “unequivocal.”

This area was highlighted recently by the Commonwealth Court of Pennsylvania in Potere v. Workers’ Compensation Appeal Board (KEMCORP). Here, the WCJ found the Independent Medical Examiner (IME; in reality, a Defense Medical Examiner [DME]) credible, and denied the Claim Petition filed by the injured worker. The WCAB affirmed.

The Court reversed this credibility determination, because it found the testimony of the IME physician was “equivocal.” In his testimony, at first, the IME doctor said the injured worker was limited to light to medium duty, but that he would be ready for full duty in a few weeks. Later in the deposition, the IME doctor said there were no objective findings and that the injured worker could return to his regular employment. Though this was found credible by the WCJ, the Court found these opinions contradictory and said the WCJ could not base his decision on such testimony. The Court remanded the case back to the WCJ, to decide the case again, in light of this change.

Notably, the Court affirmed another area of this decision, finding that it was perfectly fine for the workers’ comp insurance carrier to revoke a Notice of Temporary Compensation Payable (TNCP), and issue a Notice of Denial (NCD), despite that there was no dispute an injury took place (and ongoing disability was the only issue in dispute). We continue to hope that the new Bureau form of the NCD stops this incredibly silly, and dangerous, practice.

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