Expert Testimony

In workers’ compensation claims, experts may testify to provide evidence for an Administrative Law Judge (ALJ) to utilize in making findings of causation or compensability. ALJs have broad discretion to determine whether a witness is qualified to express “expert” opinions.  In Medina v. Qwest, the ALJ allows an expert in orthopedic surgery to opine on the cause of Claimant contracting Shingles. The ALJ used that opinion to make an ultimate decision regarding causation. This case exemplifies that the ALJ must determine whether experts possess specialized information that will resolve a relevant issue, and whether to utilize that information in making determinations at hearing.

In September 2017, Claimant sustained a work injury to his right shoulder when pulling equipment out of his truck. The authorized treating physician (“ATP”) performed surgery on shoulder, and placed Claimant’s right arm in a sling for six weeks to heal. Due to the sling, Claimant suffered inflammation, cramping and pain. In January 2019, an MRI confirmed that the condition of Claimant’s shoulder was worsening. A repeat surgery was conducted in February 2019. Six days later, Claimant developed Shingles. As a result, Claimant was then diagnosed with chronic regional pain syndrome (“CRPS”) through an independent medical examination (“IME”). At hearing, the ATP testified as an expert in orthopedic surgery. During his testimony, the ATP stated that Claimant’s Shingles outbreak was related to the shoulder surgery, because the procedure had lowered Claimant’s immune system. Due to the ATP’s testimony, the ALJ found that the Shingles outbreak was related to the shoulder surgery necessitated by the work injury. Therefore, the CRPS was found to be related to the original work injury. The employer appealed, contending that ATP was not an expert in Shingles transmission, therefore in using the ATP’s opinion to determine causation, the ALJ’s finding was not supported by substantial evidence.

On appeal, the employer contended that the ALJ abused his discretion on relying on the ATP’s testimony, because the ATP was “not an expert in the area of Shingles transmission.” The Industrial Claims Appeals Office (“Panel”) found that although the ATP did not consider himself an “expert in viruses”, he testified that he had an understanding of virology from medical school and training that rendered him knowledgeable on the subject, as compared to a lay witness. A witness may be qualified as an expert if he has scientific, technical, or other specialized knowledge which will assist the ALJ in understanding the evidence or to determine a fact at issue. Here, although the ATP was not an expert specifically in the transmission of Shingles, he had a scientific understanding of how viruses are contracted due to his medical training. For that reason, the ATP was properly understood by ALJ to be an expert.

The Panel explained that it may not interfere with the ALJ’s exercise of discretion in utilizing this evidence from the ATP, unless there was a clear abuse of discretion shown. The Panel found that no such abuse of discretion was shown, and there was substantial evidence to support the ALJ’s decision to credit the ATP as a medical expert. Although not specifically an expert in Shingles, the ATP was not disqualified from expressing an opinion regarding how Claimant contracted the virus. This opinion and a lack of persuasive evidence to the contrary was cause for the Panel to affirm the ALJ’s decision that the opinion was persuasive and allowed for a conclusion that the original work injury caused Claimant’s contraction of Shingles and his subsequent CRPS.

Medina v. Qwest, No. 5-066-685-001 (ICAO, July 20, 2020)

Want to know more? Contact Jessica Grimes at jgrimes@pollartmiller.com or 877-259-5693.

August 2020 Newsletter

2020-09-02T16:28:31-06:00