Insurance Claim Denied – Experts

No matter where you live, Grand Prairie, Arlington, Mansfield, Fort Worth, Dallas, Garland, Mesquite, Richardson, Coppell, Carrollton, or anywhere else in Texas, at some point you are probably going to have an insurance claim denied. To what extent will an insurance company go to prove they do not owe you anything?
The Texas Court of Appeals, Eastland, decided a case in December, 2008, wherein the insurance company appealed the findings of an injured persons own treating experts. The style of the case is, American Casualty Company of Reading, Pa. v. Donna Zachero. Here is some background information.
On March 17, 2003, Zachero was injured at work when she fainted and fell. She hit her chin, shoulder, chest, and elbow during the fall and developed bruises on those areas. She also injured her knee when she fell. On April 17, 2003, Zachero went to the emergency room due to pain and swelling in her knee. She was x-rayed and instructed to see an orthopedic, Dr. Luke, a specialist for the injury.
After seeing Dr. Luke and having an MRI, Zachero was diagnosed with a medial meniscus tear in her left knee. The MRI also revealed osteoarthritis and chondromalacia in the knee. Zachero had a surgery to remove the torn area of the meniscus. Zachero continued to have problems and Dr. Luke referred her to see Dr. Reilly. Dr. Reilly determined that Zachero had osteoarthritis of the left knee that was “traumatic in nature” and that Zachero needed a total knee replacement. Zachero had the surgery on November 1, 2004.
American Casualty disputed that the injury to Zachero’s knee included osteoarthritis. American Casualty contended that Zachero’s osteoarthritis was related to degenerative joint disease, which is an ordinary disease of life.
The coverage at issue here was determined by the Texas Labor Code, Section 401.011(10)., 401.011(26), and 401.011(34). These sections discuss and define injury and the last section defines the term “injury” to include the aggravation of a preexisting condition or injury.
A trial was held in this case and the jury found in favor or Zachero.
The insurance company appealed the case and one of their points of appeal dealt with their position that the expert testimony of Dr. Reilly was legally insufficient to support the jury’s findings. Dr. Reilly had testified that Zachero’s osteoarthritis was traumatic in nature from the work injury to the meniscus. Dr. Reilly explained to the jury how Zachero’s injury to her knee required the removal of the meniscus and caused her arthritis to progress.
American Casualty specifically argued that Dr. Reilly was not qualified as an expert regarding the cause of osteoarthritis and chondromalacia. American Casualty complained on appeal that Dr. Reilly was not qualified to give expert testimony on causation, that his testimony was not reliable, and that his testimony was not based upon reasonable medical probability.
This court got into a discussion of the requirements of experts to testify and the requirements of their testimony. As is hopefully obvious, this type of testimony needs to be established and in insurance cases an experienced Insurance Law Attorney should be sought to help. The court then identified six factors that trial courts may consider in dertermining whether expert testimony is reliable:
1) the extent to which the expert’s theory has been and can be tested;
2) the extent to which the expert’s technique relies upon his own subjective interpretation;
3) whether the expert’s theory has been subjected to peer review and publication;
4) the potential rate of error of the theory;
5) whether the expert’s theory or technique has been generally accepted as valid by the relevant scientific community; and 6) the nonjudicial uses that have been made of the expert’s theory or technique.
Having the above information before the trier of fact, whether a judge or jury, allows the trier of fact to have a basis upon which to render a decision.
This court upheld the trial court decision in favor of Zachero.
Fortunately, experts are not needed in all cases. Experts make the cost of cases and litigation go very high and the result of which is that often times an insurance company can out spend the person who might be sueing them. Even in cases where the insured wins, the costs of winning can sometimes exceed the compensation won. In other words a win may be very hollow in nature if the costs exceed the recovery. To get around this there are several things that must be done. One, on cases that are smaller in overall value, is to evauate a case at the beginning to see if the case can be litigated without excessive costs. This calls for spending the least amount of expense possible to prosecute the case.
Understand of course that the costs are not often considered by the insurance company. To them it is just a part of doing business.
When a case has a lot at stake, costs are not looked at that close, in other words you just do what you have to do to win.

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