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The outcome of most workers’ compensation cases depends upon the strength and weakness of the medical testimony. Compensability under the Pennsylvania Workers’ Compensation Act requires that an injury arise in the course of employment and relate to the employment. See WCAB (Young) v. Bethlehem Steel Corp., 352 A.2d 571 (Pa. Cmwlth. 1976). While theoretically there is no necessity to present medical testimony of a causal relationship between the injury and the disability where the connection is obvious, if the cause of the condition is not obvious, unequivocal medical testimony is required. See Morgan (WCAB) v. Giant Markets, Inc., 483 Pa. 421, 397 A.2d 415 (1979). PRESENTING MEDICAL TESTIMONY The general Pennsylvania evidentiary rules relating to competency of medical witnesses and form of hypothetical questions apply to workers’ compensation proceedings. See Holy Family College v. WCAB (Kycej), 479 A.2d 24 (Pa. Cmwlth 1984). In a workers’ compensation proceeding, the workers’ compensation judge is free to accept or reject any medical witness’s testimony, in whole or in part. See Hills Department Store No. 59 v. WCAB (McMullen), 646 A.2d 1272 (Pa. Cmwlth. 1994). If medical testimony is required relating to causation, it must be unequivocal to support an award. See Haney v. WCAB (Patterson-Kelley Co.), 442 A.2d 1223 (Pa. Cmwlth. 1982). A determination of whether medical testimony is equivocal is a conclusion of law subject to appellate review. See Terek v. WCAB (Somerset Welding & Steel, Inc.), 542 Pa. 453, 668 A.2d 131 (1995). Medical evidence is considered equivocal if it is vague and leaves doubt. See Chadwick v. WCAB (Benjamin Franklin Hotel), 132 Pa. Cmwlth. 525, 573 A.2d 652 (Pa. Cmwlth 1990), appeal denied 627 Pa. 604, 589 A.2d 694 (1990). Therefore, in conducting an analysis to determine whether medical testimony is equivocal, the courts look to how certain or positive the medical experts render their expert opinions. See American Refrigerator Equipment Co. v. WCAB (Jakel), 31 Pa. Cmwlth. 590, 377 A.2d 1007 (Pa. Cmwlth. 1977). CROSS-EXAMINATION Cross-examination of the medical expert requires preparation and strategy. It’s been said that more cross-examinations are suicidal rather than homicidal. The time to start thinking about your cross-examination of your adversary’s medical expert is not on your way to the deposition. It’s important to prepare for cross-examination well in advance of the doctor’s testimony. Prepare an outline of your cross-examination questions, but be prepared to add, delete or modify your questions, depending upon what comes out during the doctor’s testimony. It is crucial to subpoena the doctor’s entire file long before the doctor testifies and to thoroughly review the doctor’s file and to become familiar with all of the relevant facts and issues prior to going to the medical deposition. At all times, the litigants must be keenly aware of the respective burdens of proof in the pending petitions, and the available medical records should be carefully reviewed with the relevant burdens of proof in mind. Getting a clear medical history may require some good detective work. A claimant’s pre-existing medical conditions may be relevant in workers’ compensation proceedings. Obtaining all available, relevant medical records is often the determining factor in winning a workers’ compensation case. The credibility of the claimant is often crucial in workers’ compensation cases. From a defense perspective, destroying the claimant’s credibility may tilt the scales of justice in favor of the defense. If a claimant testifies that he never had any prior problems or injuries to the same areas of the body, the defense must make a diligent search of claimant’s prior medical records to determine the truthfulness of the claimant’s testimony. In addition to subpoenaing the records of all of the current treating doctors and hospitals, defense counsel should also subpoena the records of the claimant’s family doctor, since these often contain information that is crucial to impeach the claimant’s veracity. A search of local court dockets or an index bureau check may reveal prior injuries and/or lawsuits filed by the claimant for injuries to the same areas of the body. Be prepared to do some homework prior to the deposition. If the case involves an orthopedic injury, be prepared to refer to some orthopedic texts to learn about the musculoskeletal system prior to the deposition. For instance, become familiar with the types of tests used by the doctors to diagnose the conditions, such as X-Rays, MRIs, CAT scans, etc. You may also want to consider conducting some research on the Internet to obtain relevant medical knowledge. Another way to become familiar with an area of medicine is to discuss the matter with your medical expert prior to cross-examining your opponent’s medical expert. For instance, the first time that I handled a hearing loss case, I met with our otolaryngologist before any medical depositions were taken. I observed how a hearing test was done, and went over the interpretations of the tests with the audiologist. I learned about how to read an audiogram and could distinguish normal and abnormal test results. The outcome of most contested workers’ compensation cases depends upon the credibility of the medical witnesses. The authority of the workers’ compensation judge to decide questions of credibility is unquestioned. See Sherrod v. WCAB (Thoroughgood, Inc.), 666 A.2d 383 (Pa. Cmwlth. 1995). The testimony of a single medical expert is a reasonable basis upon which a workers’ compensation judge may arrive at a finding of fact despite conflicting evidence. See Spring Gulch Campground v. WCAB (Schneebele), 612 A.2d 546 (Pa. Cmwlth. 1992). To undermine a doctor’s credibility, you should investigate and ask whether the doctor has ever failed any licensure test or specialty boards. Is the doctor board-certified? In what field? By whom? Is the certifying body approved by the American Medical Association? Did the doctor have to pass written or oral tests to become board-certified, or did he merely have to pay a fee or attend a single seminar? Where did the doctor attend medical school? Is the school accredited by the AMA? What specific training does the doctor have in the specialty field? What degrees did he receive? Did the doctor complete any internships or residencies? If so, where? Was the hospital accredited by the Joint Commission on Association of Hospitals? Does the doctor have any teaching appointments? Where? When? What subjects? Is the doctor presently affiliated with any hospitals? Where? Have his privileges ever been suspended or revoked? Has the doctor ever been censured or disciplined by any professional organizations or entities? What is the doctor’s area of expertise? What percent of his practice involves a concentration in the area upon which the doctor is testifying? Has the doctor ever published? Where? When? What topic? How many similar cases has the doctor handled? How often does the doctor testify at the request of plaintiffs versus defendants? How many depositions does the doctor give per month? How much is the doctor paid for his testimony? Who referred this case to the doctor? How many other cases does that source refer to this doctor? Is there a system of cross-referrals between doctors or between the doctor and a lawyer? Always review the doctor’s entire file at the deposition; it’s amazing how often you uncover useful information in the doctor’s own file, which was conveniently not supplied pursuant to your subpoena. Although your subpoena should always request any and all items in the doctor’s file, often the doctors’ office staffs decide on their own not to supply certain information. Was there an intake form completed when the patient first visited the doctor? Does it contain useful information? Were all office notes supplied with regard to treatment both before and after the work injury? Were all reports supplied? Was all correspondence between the doctor and the lawyer supplied? Often, letters from the lawyer to the doctor contain inappropriate coaching or express a desired result. This information can be quite useful in impeaching the doctor’s independence and credibility. Were copies of bills supplied? Were any of the bills sent elsewhere for payment? What medical records has the doctor reviewed? Did the doctor overlook reviewing relevant medical records or test results? Does the doctor have any other files or records on this same patient? Did the doctor overlook records of the plaintiff prior to the work injury? How soon after the injury did the doctor examine the patient? Did the doctor take an accurate history of prior or subsequent injuries? Were lab tests, X-Rays and diagnostic tests properly reviewed and analyzed by the doctor? Do the test results question the validity of this expert’s findings? What medical records did the doctor review? Why didn’t he review certain records? What weight did the doctor give to certain diagnostic tests? Is the doctor basing his opinion upon the patient’s subjective complaints, rather than objective findings? Has the witness considered whether the patient is malingering or exaggerating his complaints? Is the doctor aware that the patient has a financial stake in contending that he is still disabled? Did the witness personally treat this patient? On how many occasions did the witness see the patient? What was done? What was prescribed by the doctor? What are the doctor’s positive findings? What negative findings did he encounter? How long did the exam take? What diagnostic tests did the doctor order to confirm his diagnosis? Were the tests performed accurate and reliable? Where was the testing done? Who analyzed the test results? Did the witness personally review the films or other raw data, or just receive a report from someone else? Are there any alternatives to this doctor’s proposed treatment plan? Why is the treatment reasonable and necessary? Has the treatment improved the patient’s condition? How long will the patient need the treatment? What is the cost? What are the alternatives? Is the medical treatment related to the work injury? Does it relate to a pre-existing condition? What are other possible causes for the medical condition? Are there conflicting schools of thought with regard to the diagnosis or treatment? Did the doctor do any repeat tests or alternative tests to verify his result? What is the doctor’s diagnosis? What is it based upon? What is the degree of disability? What is the cause of the disability? Is the claimant capable of gainful employment? Why not? What specific limitations should be imposed? Why? What specific aspects of employment can’t the patient do? What are the doctor’s goals? Have the goals been achieved? Why not? Why should the treatment be continued? Has the patient refused recommended medical treatment? If so, how has this affected his condition or prolonged his disability? When is recovery anticipated? What is the basis of that opinion? Did the doctor receive an accurate history? How does the patient’s personal and social history contribute to his condition, i.e., smoking, hobbies, drinking, drugs, diet, exercise, living conditions, etc.? Is there any relevant family history or psychiatric history? Did the doctor prepare any reports? Are there inconsistencies in the reports? Why did the doctor refer to other doctors, or why didn’t the doctor refer to other specialists? Did the patient comply with the doctor’s advice, instructions, or warnings? What alternative treatments were considered? When was the doctor’s last visit with the patient? Are future visits scheduled? What is the cost of the treatment? Have the costs been paid by anyone? Are the medical bills properly itemized and documented and reduced in accordance with the relevant fee caps? Can the doctor adequately explain the billing and the charges? What medical literature supports the doctor’s opinions? What literature contradicts his opinions? Did the doctor overlook any reports or test results? What weight was given to various documents by the doctor? Was this witness retained to treat the patient or just to testify? In cross-examining the witness, make use of your own medical expert’s report and consult with your own medical expert to prepare your cross-examination if necessary. Your medical expert may be able to spot the weakness in the medical foundation of the other medical expert. Cross-examination should lead the witness to favorable testimony. Generally, a medical expert should be cross-examined only when he has damaged your case or when you have something specific in mind to bring out that will help your case. Open-ended questions should be avoided on cross-examination. Instead, try to lead the witness and restrict his answers to a yes/no format. Try to ask short, succinct questions with plain words. Unless it is unavoidable, don’t ask a question unless you know the answer to it. Always listen carefully to the answer, and don’t quarrel with the witness. Don’t permit the witness to ramble; insist that the answer be responsive to your question. Don’t permit the witness to merely repeat what he said on direct examination. Have the doctor confirm helpful facts and data and avoid asking “Why?” Cross-examination should generally be brief and to the point. Stay in control of the cross-examination without outwardly showing signs of concern, anger, rudeness, ridicule or arrogance. All of your cross-examination material should be readily indexed and at hand. Although you should have a previously prepared list of points to be made on cross-examination of the witness, be prepared to deviate from your script when necessary. If the medical expert has notes, test data or other materials at the deposition, request the right to inspect same at the deposition. Don’t allow the doctor or opposing counsel to rush your cross-examination. DON’T FORGET Effective presentation of medical testimony requires preparation and attention to details. Determine in advance of the medical deposition the objectives to be achieved and the respective burdens of proof. It is important to know the subject matter before cross-examining your adversary’s medical expert. Be courteous, yet firm, with the witness. Do not allow the witness to evade questions or sidetrack you in making a point. Specific weaknesses should be pursued. The mastery of the art of cross-examination does not come overnight, but rather requires keen analysis and mastery of the facts and issues involved in the case. Paul M. Silver is a partner in the law firm of Bilotti & Silver, in Media, Pa., where his practice is concentrated in the area of workers’ compensation. Silver was formerly Deputy Chief Counsel for the Pennsylvania Bureau of Workers’ Compensation and has written and lectured extensively in workers’ compensation matters.

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