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The court of appeals in Nebraska recently held that an expert witness may testify to facts outside the field of his specialty so long as he shows familiarity with the specialties and the treatments provided.  The court also said that a physician need not examine a patient in order to provide testimony if the testimony is based on scientific, technical, or other specialized knowledge and assists the trier of fact to understand the evidence or to determine a fact in issue.

In 2002, the plaintiff suffered two work-related injuries for which she sought workers’ compensation benefits.  The court awarded permanent partial disability benefits, past and future medical expenses, and vocational rehabilitation.

After a surgery on her left shoulder, the plaintiff did not improve.  According to Dr. S, the treating physician, no other treatment options were available.  The plaintiff was in constant pain and felt overwhelmed.  As a result, she completed only one of the vocational rehabilitation classes in which she had enrolled, and dropped out with 11 credit hours remaining to complete her studies.  After she quit school, the plaintiff sought a modification of her award.  She claimed an increase in incapacity due solely to her work-related injuries.  Irwin Industrial Tool Company (“Irwin” her employer) and the Nebraska Workers’ Compensation Trust Fund, opposed the modification.

The parties introduced substantial medical evidence from several doctors, including Drs. S, D, W, and A.  At the modification hearing Irwin objected to several medical reports and depositions.

Dr. W said that the plaintiff’s increase in incapacity was due to the work-related injury.  He testified that she exhibited “fear avoidance behavior,” which is a pattern of behavior displayed in individuals with chronic pain, depression, and anxiety:  a person starts avoiding activities for fear of more pain.  Dr. W testified that although fear avoidance is not a diagnosis, he observed this behavior while treating patients over the past four or five years.  Dr. D, a psychiatrist, and his nurse practitioner both treated the plaintiff.  Dr. D testified that the plaintiff exhibited symptoms of depression when he first met with her in 2010.  According to Dr. D, the plaintiff said she felt hopeless because she was unable to continue her classes in early childhood education.  Dr. A testified that he conducted an independent medical evaluation of the plaintiff in September 2010, and said that her symptoms were either “exaggerated or factitious” and that she was likely malingering.

The plaintiff’s award was modified, and Irwin appealed that decision.  It claimed that the trial court erred in admitting opinion testimony from both Dr. D and Dr. W, who both agreed that the plaintiff’s depression increased because of pain from her injury.  These two doctors and the plaintiff said that she had to leave the early childhood education program because of the pain she experienced while doing the coursework.  Judge Francie C. Riedmann wrote in the appellate opinion that the record contained sufficient evidence to affirm the trial court’s finding that the plaintiff’s depression increased due solely to her work-related injury.

Irwin argued that the trial court erred in allowing medical evidence provided by Drs. D and W.  However, the Workers’ Compensation Court, the court of appeals said, is not bound by the usual common-law or statutory rules of evidence.  That court has discretion to admit evidence, and its decision to admit or exclude evidence will not be reversed upon appeal absent an abuse of discretion.  Judge Riedmann also said that the Workers’ Compensation Court has discretion to determine whether or not a witness is qualified to state his or her opinion, and that determination will not be reversed barring an abuse of discretion.

Irwin argued that the trial court erred in admitting portions of Dr. D’s reports, specifically that Dr. D made no objective medical findings.  Irwin claimed that he merely repeated the plaintiff’s subjective complaints, and did not base his opinion on a reasonable degree of medical certainty.  It also sought to exclude Dr. W’s report and portions of his deposition, arguing that Dr. W testified outside the scope of his expertise when he discussed “fear avoidance.”  Along with this, it sought to exclude Dr. D’s report and the treatment notes of his nurse practitioner.  Irwin claimed that Dr. W lacked foundation because he saw the plaintiff only once, in preparation for litigation, and made determinations based on her functional capacity evaluation and her subjective statements about what she believed her physical capacity to be.  The court disagreed.  An expert witness may testify to facts outside the field of his specialty if he or she shows familiarity with the specialties and the treatments provided.  Judge Riedmann cited that the Nebraska Court of Appeals had previously held that a physician who had experience treating patients with symptoms similar to the plaintiff’s was qualified to testify even without proving the medical community universally recognized the diagnosis he assigned.

In this case, the judge said, Dr. W did not seek to diagnose the plaintiff with fear avoidance, but instead used the term to describe a pattern of behavior he observed in many of his patients.  Dr. W’s experience working with patients with similar symptoms in his practice was sufficient foundation for his testimony. The appellate court also rejected Irwin’s argument that Dr. W did not have proper foundation to form a medical opinion because he saw her only once and based his opinion partially on her opinion of her condition. A physician need not examine a patient in order to provide testimony if the testimony is based on scientific, technical, or other specialized knowledge and assists the trier of fact to understand the evidence or to determine a fact in issue.  In this case, Dr. W examined her and reviewed the opinions and records of other physicians.  This provided the expert witness with sufficient foundation upon which to base his opinions. The trial court did not abuse its discretion in admitting this testimony.

As a result, the Court of Appeals held that the Workers’ Compensation Court properly ruled on the evidentiary issues before it, and the decision was affirmed.

Case: — N.W.2d —-, 20 Neb.App. 488, 2013 WL 216368 (Neb.App. Jan. 22, 2013).