A report issued by the employer's medical expert that contained a critical typographical error is not competent evidence to support a workers' compensation judge's expansion of the claimant's injuries.

Following the claimant's work injury, the employer filed a petition to terminate the claimant's benefits. The claimant challenged the petition and also filed a Review Petition, seeking to expand the nature of the work injury to include aggravation of a pre-existing degenerative cervical condition. During litigation, the employer conducted the deposition of their medical expert, who gave the diagnosis of thoracic and cervical strain, superimposed on spondylosis. The employer's expert explained that by "superimposed" he meant that it existed in the same area of the body as the cervical strain. It was the expert's opinion that the claimant was fully recovered from her work injury and that the work injury did not cause an aggravation of pre-existing cervical disc disease. However, on cross-examination, the employer's doctor did admit that a report he issued following his IME stated, "I do feel that this work injury caused an aggravation of the pre-existing degenerative condition." The employer's expert testified that this was a typographical error and that the report should have read, "I do not feel that the . . . injury caused an aggravation . . .." He, therefore, issued a corrected report after the typo was brought to his attention by employer's counsel. The workers' compensation judge granted the Review Petition based on the employer's expert's first report diagnosing a cervical strain superimposed on a pre-existing condition, the report which contained the typographical error. The Appeal Board affirmed. The employer appealed to the Commonwealth Court, arguing that there was not competent evidence to support the finding that the claimant suffered an aggravation of her cervical disease. The Commonwealth Court agreed and reversed the workers' compensation judge's decision. The court concluded that the workers' compensation judge relied upon a typographical error, which could not be competent evidence. The court noted that reading the IME report in its entirety made it clear that the expert never expressed an opinion that the claimant suffered an aggravation. The court concluded that there was overwhelming evidence that the expert's true opinion was that the claimant did not suffer an aggravation and that the workers' compensation judge's focus on one sentence, and refusal to accept the correction, was capricious and impermissible.

Case Law Alert - 2nd Qtr 2011