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The Importance of Unequivocal Expert Testimony in Pennsylvania Worker’s Compensation Cases

In a recent unreported  Commonwealth Court decision, Nestle USA, Inc, v. WCAB (Gallen) 2017 WL 1131090, the Court examined the sufficiency of a Claimant’s expert testimony and affirmed both the Workers’ Compensation Judge and Workers’ Compensation Appeal Board’s decisions awarding workers’ compensation benefits to a Claimant suffering from  Legionnaires’ Disease as a result of his employment.

In this case, the Claimant was a service technician for the defendant and his responsibilities included cleaning beverage dispensing machines.   These machines would, from time to time, spray water in the claimant’s face. This water would often sit inside the machines for up to a month.  The Claimant began to experience flu like symptoms on or about June 25, 2013 and eventually fell into a coma and was diagnosed with Legionnaires’ Disease.   He eventually awoke from the coma but was confined to a wheelchair and suffered residual cognitive impairment.

One month prior to the June 25 onset, the Claimant was diagnosed with pneumonia.  He was also a smoker for 20 years.   Interestingly, no one else in his family or work was diagnosed with the disease.   The Defendant attempted to raise alternative theories of infection including fishing and the Claimant’s opening his private pool. The defendant also attempted to discredit that family physician’s testimony which indicated that Legionnaires’ Disease incubation period was from 2 to 10 days and “always associated with dirty water . . ..” The Claimant also presented a Pennsylvania Department of Health warning concerning a reported increase in Legionnaires’ Disease in the state.

The Defendant also presented the testimony of a board certified infectious disease specialist who testified the water temperature and atmospheric conditions were not conducive to the breeding of the bacteria.  Further, even if the bacteria were able to grow, the water would need to be “aerosolized” in order to deliver the disease to the Claimant’s lungs.  Finally, he opined that brain damage, Legionella pneumonia and other complications could not, within   reasonable medical certainty, be connected to any one particular source.

The Judge found the Claimant’s testimony to be “competent, persuasive and accepted as credible in its entirety” and consistent with the medical evidence presented by his expert, Dr. Peck.  The Judge also discredited the defendant’s expert due to the fact that he did not examine the machines in question and did not examine the claimant until 16 months after the onset of symptoms.  The Judge also found that the Claimant’s lay witnesses were believable that other exposures were not the source of the Claimant’s symptoms. The Defendant filed an appeal to the Workers’ Compensation Appeal Board. The Board affirmed the decision of the Judge awarding benefits to the Claimant.

The Commonwealth Court recognized that the Pennsylvania Workers’ Compensation Act requires that expert testimony be unequivocal.  The Court found that the Claimant’s doctor “never wavered from his opinion that the Claimant’s Legionnaires Disease (was) the direct result of his occupation.”   In so doing, the Court looked to the case of, May Department Stores v. Workmen’s Compensation Appeal Board (Smith), 525 A.2d 33 (Pa. Cmwlth. 1987).  The May case also involved Legionnaires’ Disease but unlike the instant case, the Court found that the expert’s opinion was equivocal because that doctor stated that his opinion was based on assumptions that individuals working in damp places “seem” to have more incidents.  The Court in the instant case, unlike in the May case, found that the medical and testimonial evidence presented by the Claimant herein was unequivocal.  There was, not, in the mind of the Court, an opinion stating that the injury could have or might have come from the source at issue but rather that the testimony was that it did come from the asserted injury.  Phila. Coll. of Osteopathic Med. v. Workmen’s Comp. Appeal Bd. (Lucas), 465 A.2d 132, 134–35 (Pa. Cmwlth. 1983).

In cases involving a work related injury, it is critical that you make sure your doctor will support your claim that your injury is related to your work.  Your doctor cannot state that the injury could be, might be or seem to be related to work.  Instead, your doctor must be able to find that your job caused or was a substantial contributing factor in causing your injury.  The opinion of your doctor, however, does not have to be an opinion with absolute certainty, but must rather be an opinion based on a “reasonable degree of medical certainty”.

If you have experienced a work related injury, it’s important to determine early on in your case, whether your doctor will give you the evidence you need to support your claim.  If you are unsure if your doctor can provide the required opinion, you may want to discuss the matter with an experienced worker’s compensation attorney.

Ira H. Weinstock, P.C. is located in Harrisburg, PA and serves clients in and around Southeast Pennsylvania. Contact our experienced Harrisburg attorneys today, we can travel if necessary.

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