Whether a witness is qualified to testify as an expert is a frequently-faced question in workers’ compensation cases. In Appeal No. 162270, filed December 22, 2016, the Appeals Panel answered the question of whether a cancer research biologist with a Ph.D. in biochemistry and biophysics, engaged in investigating the etiology and treatment of brain tumors, but who is not a “doctor” as defined by the Act, is qualified to testify on the compensability of a death resulting from an astrocytoma brain tumor, hypertension, stress and intracranial hemorrhage. The end result: a reversal of the decision that the Decedent did not sustain a compensable injury, with remand back to the Hearing Officer, as the finders of fact were addressed at the time of this decision, to consider the testimony of the witness.
The Decedent was a software engineer employed in Texas, who fainted while in China, where he was working to effect a merger of the employer’s office in that location with its office in the Texas city. The Decedent received treatment, including surgical intervention in China and was ultimately diagnosed with intracranial hemorrhage and a Grade III astrocytoma brain tumor. The Decedent was transferred back to the United States to receive treatment in two locations, in the latter of which he died. The death certificate identified the primary and secondary causes of death as 1) astrocytoma of the brain; 2) intracranial hemorrhage; and 3) respiratory failure.
The Claimant Beneficiary relied upon the report and testimony of Dr. H., a cancer research biologist with a Ph.D. in biochemistry and biophysics, who pursues investigations of the etiology and treatment of brain tumors. The Carrier objected to Dr. H. offering a medical opinion on causation. The Hearing Officer found that Dr. H. was qualified to testify as to his research into astrocytoma; however, he was not qualified to offer an opinion as to causation regarding hypertension, stress, and intracranial hemorrhage. The Hearing Officer decided that the Decedent did not sustain a compensable injury on the date of injury, resulting in his death.
The Appeals Panel disagreed with the Hearing Officer’s decision, reminding the parties that it has previously held that medical evidence may be generated by a number of sources other than individuals who are defined as “doctors” in Section 401.011(17) of the Act. That section reads that a “[d]octor means a doctor of medicine, osteopathic medicine, optometry, dentistry, podiatry or chiropractic who is licensed and authorized to practice.” The Appeals Panel held that Dr. H.’s narrative and testimony should not have been discounted as an expert medical opinion concerning causation merely because a Ph.D. is not listed under the definition of “doctor” in Section 401.011(17). The fact that Dr. H. is a cancer research biologist with a Ph.D. in biochemistry and biophysics, engaged in investigating the etiology and treatment of brain tumors, supported the conclusion that his opinion is qualified.
The Appeals Panel noted that the weight of Dr. H’s. opinion was within the province of the Hearing Officer to determine, but the Hearing Officer erred by failing to consider Dr. H.’s report and testimony concerning causation merely because Dr. H. is a Ph.D. and not a “doctor” as defined in Section 401.011(17).
The Appeals Panel reversed the decision of the Hearing Officer that the Decedent did not sustain a compensable injury resulting in his death and remanded the issue back to the Hearing Officer to make findings of fact and conclusions of law and to enter a decision which is supported by all of the evidence. On remand, the Hearing Officer was to consider the testimony and narrative of Dr. H. concerning causation. No new evidentiary hearing on remand was necessary.
What this means for defense counsel and insurance carriers is that special attention must be paid to all of the evidence purported to establish causation, even if it is not coming from a “doctor” as defined by Section 401.011(17). The decision opens the door to testimony and narrative evidence of Ph.D. witnesses certainly, but also to field researchers and possibly to student researchers. Proper evidence must be obtained to rebut the opinion of a Ph.D. or similarly qualified witnesses, because there is no guarantee their testimony on causation will be excluded; defense counsel must be prepared to cross examine the witness as if taking on a traditionally defined doctor.
Our firm continues to follow new case law concerning expert qualifications addressed in the decisions of the Appeals Panel of the Texas Department of Insurance-Division of Workers’ Compensation. We will continue to provide updates concerning this important issue.