There is a Medical Expert for Everything

Tuesday, May 17, 2011 | 0

By Michael Rabinowitz
Banker Lopez Gassler

One key in defending workers’ comp claims is to properly assess your medical evidence. Without it, you have little chance for success.

So, it is paramount for claims professionals to understand what an “expert” can testify to and what will be accepted by at judge. Because if they are not a medical expert, the testimony is practically worthless.

In Stokes v. Schindler Elevator, claimant suffered a compensable accident to his ankle. Through a series of unfortunate events, the ankle became infected and led to the death of claimant. His spouse, sought death benefits after a pathologist determined the cause of death was the compensable injury.

The employer/carrier (E/C) denied the claim and hired their own expert, a toxicologist. Now, it is important to understand that a toxicologist is not a medical doctor. They are experts in the field of chemical and their poisonous effects upon humans (or animals depending on the branch of toxicology). A person does not need to hold a medical doctorate degree to hold themselves out as a toxicologist.

At trial, the E/C’s toxicology expert did not testify that the ankle injury could have caused claimant’s death. He just testified that claimant could have died from other causes. The judge of compensation claims sided with the E/C and claimant appealed.

The 1st District Court of Appeals reversed on the grounds that the E/C’s toxicologist was not a medical expert and therefore his opinions should not have been accepted by the JCC. Chapter 440 is quite clear in that only medical testimony can be accepted as evidence, whether it’s in s. 440.13(5)(e)–only medical testimony from an independent medical examiner, authorized physician, or EMA–or s. 440.09–causation must be established evidence with a reasonable degree of medical certainty. A toxicologist is not a medical expert, therefore the JCC could not rely on the E/C’s expert to deny the claim.

Now, does this mean that you should never use a toxicologist?  No.  Toxicologists still have a valuable role in an E/C’s arsenal to defend death claims, or even more important: exposure claims. I’ve utilized toxicologists to determine what chemical if anything a claimant was exposed to that could lead to an alleged injury. They are experts at that kind of testimony.

The key is getting a medical doctor to validate the toxicologist’s opinions through testimony. Whenever I’ve used a toxicologist it was at the request of my IME or an authorized doctor. I’ve then filtered the toxicologist’s opinions through the medical doctor. This way the expert opinion is presented with a reasonable degree of medical certainty to the JCC.

I think the same thing can be applied with psychologists, who also do not hold a medical doctorate degree (but instead a PhD). Section 440.093 requires a licensed psychiatrist to present clear and convincing evidence that a claimant suffers a mental or nervous injury. A psychologist would not be able to provide such testimony to a JCC. However, like a toxicologist, a psychologist’s opinions can be filtered through a medical doctor: a psychiatrist.

Knowing the legal limitations of your experts is key to establishing a base defense on your claims.  Do not solely rely upon a non-expert to defend your claim. 

Remember, there is a medical expert for everything.

WorkCompCentral subscribers may download the 1st DCA's opinion by clicking on the case title in the sidebar.

Michael Rabinowitz is a workers' compensation defense attorney for Banker Lopez Gassler in Tampa. This column was reprinted with his permission from the his blog, http://workerscompblog.wordpress.com/