The Commonwealth Court of Pennsylvania recently examined the burden of proof for medical evidence to be within a “Reasonable Degree of Medical Certainty.” In PetSmart, Inc. v. Workers’ Compensation Appeal Board (Sauter), the injured worker alleged that he had hurt his low back while performing his job for employer. A Claim Petition was filed, and the matter was litigated before a Workers’ Compensation Judge (WCJ).
In support of the Claim Petition, the injured worker presented expert medical testimony from his treating physician, Dr. Stanley Porter. During his deposition, Dr. Porter testified that Claimant had “discogenetic low back pain, as well as nerve symptomatology of indeterminate etiology” and that it was his “presumption” that it was related to work.
The WCJ found the injured worker and his medical expert Dr. Porter, to be credible. As a result, the WCJ granted the Claim Petition. This Decision was affirmed by the Workers’ Compensation Appeal Board (WCAB).
Upon further appeal, the Commonwealth Court of Pennsylvania reversed the Decision of the WCJ and Order of the WCAB. The Court did acknowledge that there are no “magic words” that need to be used by a medical expert, and that an appellate court is “not permitted to pick one or two sentences out of context.” However, the Court reasoned that the testimony of the injured worker’s medical expert, Dr. Porter, simply did not rise to the level of “reasonable degree of medical certainty.” The opinion and testimony rendered by Dr. Porter found the condition “of indeterminate etiology,” and said it was his “presumption” that it was work-related.
The Court cited to prior precedent which held that expression by a medical expert of “uncertain etiology” and “perhaps” and “presumption” are insufficient to meet a Claimant’s burden of proof in a Claim Petition litigation. The Court emphasized that this language used by Dr. Porter was insufficient to rise to the level to support the burden of proof inherent in a Claim Petition. The Court was constrained to conclude that Dr. Porter’s statements do not unequivocally establish that the back pain or nerve symptomatology Claimant suffered was in fact a result of the alleged work injury. The Court determined that Dr. Porter’s testimony could not, as a matter of law, support the burden of proof for the granting of the Claim Petition.
This case is important because the Court has refined its view of what medical evidence and testimony must be presented in a “Reasonable Degree of Medical Certainty” in order to prevail in a workers’ compensation Claim Petition litigation involving conflicting medical expert testimony.
Zachary M. Rubinich is a partner in our Philadelphia office. He focuses his practice on the defense of insurance carriers, self-insured entities and third-party administrators against workers’ compensation claims in Pennsylvania. Based on his extensive experience, the Pennsylvania Bar Association Workers’ Compensation Law Section has certified him as Specialist in the practice of workers’ compensation law. Zach has handled all aspects of litigation before workers’ compensation judges, the Workers’ Compensation Appeal Board, the Commonwealth Court and the Pennsylvania Supreme Court. He routinely counsels employers, insurance carriers and third party administrators on claims management, workplace safety, return-to-work programs, employment practices and risk management. Zach has been appointed to the following American Bar Association Tort Trial and Insurance Practice (TIPS) leadership positions: Vice-Chair of the Litigation and Trial Practice Committee; Vice-Chair of the Appellate Advocacy Committee; member of the Ethics and Professionalism Standing Committee; and member of the CLE Board Committee. These appointments will become effective in September 2019. He is currently Chair of the American Bar Association’s Tort Trial and Insurance Practice (TIPS) Workers’ Compensation and Employers’ Liability Law Committee for 2018-2019. He served as Vice-Chair of this committee for 2015-2016, 2016-2017 and 2017-2018. In addition, Zach served as Vice-Chair of the 2017-2018 American Bar Association Standing Committee for Diversity and Inclusion. Zach has been rated AV Preeminent by Martindale-Hubbell for the seventh consecutive year in 2019. He has been selected as a 2019 Pennsylvania Super Lawyer by Super Lawyers. He was selected as a Pennsylvania Rising Star by Super Lawyers from 2010 to 2014.
Zach can be reached directly at: (215) 575-4340 • zrubinich@rawle.com
