Excerpted from the SEAK DVD Training Seminar: How to Excel as an Expert Witness in Workers’ Compensation Cases: Special Techniques
– Looking at the records carefully, that’s another part of your job. And also, looking for what’s not there is another part of your job.
– Well then again, just I know I highlighted this at the beginning, but I think it warrants highlighting again. Make sure you get input from all parties. So I can speak to a situation in which the expert opinion for the employer got a job description from the employer, and it said, look, this employee is a parts runner. But none of his work involves overhead work. And it was a shoulder case, and the claim was he’s got an impingement now, and needs surgical repair on his shoulder. And so, the theory of the case is this is a condition that’s work related and [inaudible]. The employer says ,’Look, none of this guy’s work is overhead.’ And the expert opinion says, ‘Yep, based upon the job description this just isn’t possible. You can’t injure, you can’t get an impingement from not doing overhead work. It has to be overhead work.’ Sure enough, the employee comes in to trial and testifies, and his attorney, which was a good one, says, ‘Did the independent medical examiner ask you about your job?’ And the answer is, ‘Yeah, sort of.’ Well, what did he ask you? He asked me what I did. And what did you tell him? I told him I was a parts runner. And was that it? Yep, that’s all he wanted to know, so that’s what I told him. And then, when he actually testifies about the nature of his job undirect, guess what comes out through direct? Yeah, well there were parts that were above my head that I had to grab or had to pull down. And how often did that happen? Probably a dozen times a day. Well, guess what? At that point, the expert’s opinion is not persuasive to me because he doesn’t have an accurate account of the employee’s job and how he alleges he was injured. Now maybe if the fact finder, or if the expert had known that and said, ‘Look, he’s only doing is 12 times a day and that’s not going to be sufficient enough to cause the rotator cuff tear’ totally different situation. But when the opinion is silent on that, it’s not persuasive at that point