IME Causation: Insufficient Testimony
By: Steven Babitsky, Esq.
Sanchez v. NATIONAL DISTRIBUTING COMPANY, NM: Court of Appeals 2012
The New Mexico Court of Appeals dealt with the “possibility” testimony of an IME physician on the issue of causation.
The testimony in question was as follows:
Burney testified as follows:
Q: Do you believe that Mr. Sanchez’s subsequent employment at Keller’s Meat Market [sic] could have contributed to the worsening of his knee condition?
A: Oh, yes. I think so.
. . .
Q:. . . Is it your testimony that [W]orker’s subsequent employer, Keller’s Meat Market [sic], is at least partially responsible for his worsening knee conditions?
A: I would think so. I think that the nature of his employment, I’m sure, probably aggravated the osteoarthritis. Like I said, I don’t think I’m wise enough to apportion it, but I think that both of his jobs, I think contributed to the problem that he has.
Q: Is that your opinion to a reasonable degree of medical probability?
A: Yes.
Dr. Burney gave a second deposition on November 1, 2010. There, he addressed his previous testimony given on July 27, 2009, quoted above:
A: The question was: “Do you believe that Mr. Sanchez’s subsequent employment at Keller’s Meat Market [sic] could have contributed to the worsening of his knee condition?”
And my answer was: “Oh, yes. I think so.” It says “could have.”
Q: Has your opinion changed that his employment at Keller’s could have worsened the condition of his knees?
A: Well, I still think it could have. But if it was to come to the question of reasonable medical probability, I don’t think I could testify at that level of certainty.
The court found the testimony of the IME physician legally insufficient and affirmed the denial of benefits.