From the Desk of Attorney Jason M. Carlton

PRACTICE TIP:  After a finding of Prima Facie Medical Evidence (PFME) is made, careful cross-examination of an attending physician should be undertaken to probe the certainty with which a causal relationship opinion has been provided.

In the New York workers’ compensation case of Johnson v. Borg Warner, Inc., 2020 NY Slip Op 04897 (9/3/20), the claimant alleged that he felt a sudden pain in his left knee while walking through his work cell.  The claimant was diagnosed with a meniscal tear and degenerative changes for which surgery was performed.  The attending orthopedic physician testified that it was difficult to determine when the meniscal tear occurred.  He testified to a “strong possibility” that there was an acute or chronic tear of the meniscus and it was “very reasonable that something could have happened at work that exacerbated a chronic [condition].”  The Administrative Law Judge established the case for a work-related injury to the knee.  A Board Panel affirmed the ruling, and an appeal was taken to the Appellate Division.

Upon review, the Appellate Division ruled that the testimony of the claimant’s expert was “insufficient to establish the requisite probability that the claimant’s meniscus tear was causally related to his employment.”  The opinion that there is a high possibility that an injury is causally related to work falls short of the “reasonable probability” that is required to establish a causal relationship between the employment and the injury.  The Appellate Division, therefore, reversed the establishment of the claim.

Although there is no requirement that medical opinions be provided with an absolute or even a reasonable medical certainty, such opinions must reflect that there is a probability of the cause and the opinion must not be based upon “a general expression of possibility.”  Thus, careful questioning of an expert after a finding of PFME can achieve a favorable result for carriers and employers. 

The Johnson case was handled in our office by Attorney Donald Gitto at the trial level and Attorney Jason Carlton at the Appellate level.  Our Appellate Department can assist in the evaluation of whether an appeal regarding expert testimony presents an opportunity for reversal after an adverse ruling. 

If you have any questions about this or any other issue, contact Jason Carlton at or (607) 723-0600 or any of the attorneys in our office.  If you would like a training session on this or any area of the Workers’ Compensation Law, please do not hesitate to contact our firm.

This information is provided for general guidance only.  This information should not be used as a substitute for consultation with legal counsel.  Each case presents unique facts requiring individual analysis.