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Caswell, Panko & Westerhold, LLC

At the heart of almost every trial level decision is a dispute between two medical experts. In Nebraska, unless the character of an injury is objective and plainly apparent (for example, an amputation), an injury is a subjective condition and the employee has the burden of proof and persuasion to establish the causal relationship between the accident and the injury through expert medical testimony. Caradori v. Frontier Airlines, Inc., 213 Neb. 513, 329 N.W.2d 865 (1983). As a general rule, the Nebraska Workers’ Compensation Court is not bound by the usual common law or statutory rules of evidence. This means that expert Daubert challenges do not exist in the compensation court like they do in the civil courts. However, a few rules do apply to expert medical opinions in the Nebraska Workers’ Compensation Court.


First, only certain types of medical providers can provide legally sufficient causation opinions. Physical therapists, PAs, APRNs, and speech pathologists are a few of the more common specialties that cannot, as a matter of law, provide legally sufficient causation opinions. Lounnaphanh v. Monfort, Inc., 7 Neb. App. 452, 583 N.W.2d 783 (1998).  Additionally, even a qualified medical expert cannot provide expert testimony or opinions if he or she is not in possession of facts which will enable him or her to express a reasonably accurate conclusion. Haynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015). Stated another way, the expert must have enough facts to show that his or her opinion is not merely guess or speculation. Finally, because of unique evidence rules in the compensation court, it’s rare that a medical expert testifies in person at trial. More often than not, physician’s provide opinions in written reports and letters. There are no magic words that an expert medical provider must use, however, some language is legally insufficient. For example, a doctor’s use of phrases like “could”, “may” or “possibly” lacks the definiteness required to support an award. Edmonds v. IBP, Inc., 239 Neb. 899, 479 N.W.2d 754 (1992).


Assuming the medical expert provides a legally sufficient causation opinion which satisfies the above, it ultimately becomes the prerogative of the assigned judge to decide which expert is more persuasive. But what exactly makes one doctor’s opinion more persuasive than another? What factors do the different judges find persuasive?  At the outset, it should be acknowledged that each case is unique, and the judges will closely analyze the facts of each case. There’s certainly no way to predict with any level of certainty which doctor a judge will find to be more credible. However, there are notable trends to consider when attempting to assess if your expert opinion is going to be more credible than your opponents.


First and most obviously, what is the provider’s specialty? As a matter of law, both a chiropractor and a neurosurgeon can opine on causation of a head injury, but commonly, the judges will find the latter to be more credible in light of the additional specialized education and training required. Along the same line, a pulmonologist tends to be more credible than a general practice or family medicine physician in lung injury cases.


Secondly, what other information in the record tends to support or disprove the expert’s opinion? More commonly than one may guess, an expert will provide an opinion based on an accident description which is completely different than the employee’s own testimony at trial. Even less blatant differences between the provider’s opinion and the employee’s testimony are relevant. In 2021, Judge Block discredited an expert’s causation opinion because it discussed how a particular mechanism of injury would cause an immediate injury and pain, but that directly contrasted with the employee’s own testimony that his pain started gradually at a later date.


Similarly, lawyers sometimes fail to provide the expert with adequate information from the record. In 2019, Judge Stine held that a defense medical examiner’s opinion was “rendered unreliable” because he was not provided with a highly important post-accident medical record. Similarly, Judge Fridrich completely ignored a treating physician’s opinion because it failed to recognize or discuss any of the employee’s past medical treatment. Just recently, Judge Martin also discredited an expert’s opinion because the attorney did not tell the doctor that the treating physician previously found the condition to be unrelated to a work incident. If the physician doesn’t have the benefit of the full record, it certainly makes the opinion less credible.


Judges will also examine how the expert’s opinion compares to the daily treatment notes, and the overall presentation of the employee in the courtroom and on surveillance. Routine “physical examinations” in the treatment notes and physical therapy notes are often overlooked but can be strong pieces of evidence when disputing the nature and extent of a particular injury. By way of example, Judge Martin discredited an employee’s expert because he discussed the mechanism of injury as involving blunt force trauma, yet the emergency room records from the same day indicated the employee had no visible bruising. This is particularly true with scheduled member injuries. Frequently, an impairment rating will be based on things like a range of motion, but a review of the treatment notes may show the employee had full range of motion for months before being placed at MMI. Likewise, an expert who provides a permanent restriction of no sitting for more than an hour will leave the judges questioning that opinion if the employee sits comfortably during a three-hour trial.  Indeed, a party whose expert relies on objective medical findings and evidence tends to be more successful than one whose opinion relies on subjective complaints, (though that’s certainly not always the case, especially if the judges find the employee to be credible).


In cases involving pre-existing conditions, judges will not find it highly relevant for doctors to conclude that an accident did not aggravate that condition if the employee had no treatment for years before the incident.  In 2020, Judge Coe opined that a lack of evidence of medical treatment by an employee in the year before the incident is a strong indication that the accident caused an aggravation of a pre-existing condition rather than a recurrence. Attempting to persuade the judges otherwise has proven to be a difficult task.


Above all, the judges care about how well the physician explains his or her opinion. Every year, the judges openly speak about their views on check-box reports. While there are certainly valid reasons to use a check box report, a lawyer cannot expect to be successful if causation is only explained by a simple check mark next to the answer “yes” or “no.” Judge Hoffert explained it best when he wrote that a check box report, without any supporting information, simply lacks the kind of detail required on the “critical element” of causation. It is no secret that judges are not medical doctors. They therefore depend on the doctor to not only provide an opinion, but also explain the facts, information, and research which supports that conclusion. Using check box reports, one sentence opinions, and completely ignoring the “bad” facts in a case are quick ways to reduce the value of an expert’s opinion.


Almost as important as the factors the judges are considering when deciding between two experts is a quick discussion of what type of information isn’t relevant. If you’ve seen any courtroom TV dramas, you may be surprised to hear that the compensation court is much less contentious. In recent years, no judge has ever discredited an expert because he or she was paid for the time spent formulating that opinion. It’s well recognized that physician’s time is valuable and both parties frequently have to pay for an opinion.  Another factor rarely discussed is that a defense medical examiner may only have the opportunity to examine the employee one time. While it’s certainly true that a treating physician may be more credible because he or she examined the employee over a number of months, a defense medical examiner is rarely discredited simply because he or she wasn’t afforded that same opportunity. Unlike what you may see on TV, the judges also don’t discuss what medical schools one particular expert went to over another. While a specialist may be given more credit, no judge has ever discredited an expert because of his or her chosen medical school or training. Again, it’s worth repeating that judges care most about the substance of the opinions and don’t focus on unrelated red herrings.


It’s worth repeating that these trends aren’t a hard science. Judges decide cases based on the facts of each case. Each of the trends discussed above certainly has an exception. However, these trends are important factors to consider when predicting the likelihood of success at trial and determining whether a supplemental opinion from your expert may be necessary.


If you have questions about a potential expert issue, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.