In Denise Elberson v. WCAB (Elwyn, Inc.), the Commonwealth Court held that an employer’s medical expert witness must first recognize the full and complete description of the work injuries accepted by the employer as compensable in order for the expert’s full recovery opinion to be successful in a Petition to Terminate compensation benefits. In Elberson, the employer’s medical expert testified that he thought or believed that the claimant’s work injury involved a “lumbar strain or sprain”. However, in the Notice of Compensation Payable issued by the employer accepting claimant’s injuries, those injuries were described as a “lumbar disc herniation”. The Commonwealth Court held that, because the employer’s medical expert did not agree that the work injury involved or included a disc herniation, his opinion of full recovery was insufficient to establish that the claimant had fully recovered from his work injuries. The Court indicated that “at a bare minimum, the expert must know what the accepted work-related injury was to be competent to testify that a claimant has fully recovered from a work-related injury”. 

What It Means to You

Unfortunately, the scenario in Elberson often arises in day-to-day claims management and litigation practice. Many experts will mistakenly attempt to minimize the nature of the claimant’s accepted work injuries so as to try to help the employer. Unfortunately, the expert may wind up short of, and sometimes in direct contradiction to, the formal description of the accepted injuries in the Bureau documents. At Cipriani & Werner, we ensure that the IME expert is fully informed of the exact description of the accepted work injuries so as to avoid the unfavorable outcome in Elberson. Please feel free to ask our input on any pending workers' compensation issues you may have.