The Commonwealth Court in Albert Einstein Healthcare v. WCAB (Stanford), has addressed the burden of proof required from Claimant to establish disability for periods prior to their medical experts' treatment of the Claimant.
Often we are confronted with Claimants who attempt to establish disability based upon the testimony of an expert who did not begin treating claimant at the time of the work injury, but after a referral from a family physician. At a minimum, claimant’s expert should not begin treating claimant until after 90 days since he is not a panel physician. To establish disability from the date of the injury, Claimant’s counsel often relies on the testimony of Claimant that they were disabled for periods prior to their initial treatment with their medical expert.
In Albert Einstein Healthcare, Claimant sustained a work related injury on August 28, 2002. On December 19, 2002, Claimant filed a Petition for benefits. She subsequently testified that her work injury caused her to leave work on October 21, 2002 when her family physician informed her that she “needed to get some rest”. Claimant’s expert began treating the Claimant on December 17, 2003, just over one year later. Claimant’s expert testified that she sustained an injury to her lower back in the form of an aggravation of her pre-existing degenerative condition as of the date of her work injury and “has not been able to work in a normal position at any time that she has been under his care”. Claimant’s expert did not testify that Claimant was disabled from the date of her injury.
The Workers’ Compensation Judge granted the Claim Petition but also concluded that Claimant only met her burden of proof that she suffered disability at the time she initially treated with her expert on December 17, 2003. Claimant’s counsel appealed the Decision to the Appeal Board who affirmed the Judge’s Decision, but modified the period of disability to October 21, 2002, the date of the injury, based upon Claimant’s credible testimony that she was put out of work by her family physician.
The Commonwealth Court reversed the Appeal Board and reinstated the Workers’ Compensation Judges’ period of disability. The Commonwealth Court found that expert testimony is required to establish gaps in time between the injury date and the date of Claimant’s treatment with their medical expert. The Commonwealth Court noted that while Claimant testified that her family physician indicated that she “needed to get some rest”, they found it insufficient to establish her work injury caused disability as of October 21, 2002. They indicated since the only medical evidence supporting a work related disability was that of the Claimant’s expert, Claimant did not meet her burden of proof that she was disabled as of the date of the work injury.
The Commonwealth Court reviewed Ricks v. WCAB (Parkway Corp.), 704 A. 2d 716 (Pa Cmwlth. 1997) which claimant cited for the fact that Claimant’s testimony can establish chronological lengths of disability. The Court indicated that Ricks is applicable in cases where the injury is not obvious in nature and the causal connection is not dependant upon medical testimony. In those circumstances, Claimant’s testimony is sufficient to connect the injury to Claimant’s employment. Additional medical testimony is not required. However, when the causal connection between the disability and the work related injury are not obvious, then unequivocal medical evidence is required to establish the causal connection.
The Court went on to indicate that if Claimant’s expert reviewed medical records prior to his treatment and drew a reasonable inference that Claimant was disabled based upon his review of records and/or the prior medical records were placed into evidence, then Claimant theoretically could meet her burden of proof. The Court also indicated that if the Claimant testifies that her doctor took her out of work, that is a hearsay statement even though it is not objected to. They indicated that Claimant must still corrarate the out of court statement of her doctor with other competent medical evidence to adequately establish a causal connection between her injury and her disability.
What It Means to You
This case illustrates the fact that it is important to pay attention to the testimony of Claimant’s medical expert in cases where the medical expert did not treat Claimant since the date of the work injury. If the medical expert does not testified that he reviewed Claimant’s medical records prior to the beginning of his treatment and rendered an opinion based upon those records and/or if Claimant does not place into evidence prior treatment records which specifically provide for disability from the date of the work injury, then you may not be liable for periods of disability prior to the medical experts treatment. Our office has litigated and appealed cases dealing with the Ricks/Albert Einstein Healthcare situation and is available to discuss your particular case on this important issue.