California: Bullet Proof Your “Substantial Medical Proof”

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By Hon. Colleen Casey, Former Commissioner, California Employees’ Compensation Appeals Board

“Substantial Medical Proof” is a ubiquitous catch-all phrase. When does it exist? When is it required for a authorized willpower? There’s even controversy over what sort of medical report is likely to be given extra weight than a equally located report, even when each are thought-about “substantial medical proof.” So how does a litigant guarantee compliance? It’s type of like in 1964, when Supreme Court docket Justice Stewart tried a definition of pornography as, “Effectively, I do know it once I see it.” To provide the group extra concrete steerage, a number of Noteworthy Panel Choices (NPD) have issued not too long ago that present solutions as set forth under, to those difficult however important questions.

1. “Substantial Medical Proof” Might Be Required to Show “COE”

A discovering of business causation is often composed of two components. (See California Supreme Court docket case of LaTourette v. WCAB (1998) 17 Cal. 4th 764, 63 Cal. Comp. Circumstances 253.)

a. Does the damage “come up out of employment” (AOE)? It is a medical problem. Did the doctor set up a causal connection between the employee’s employment and the damage?

b. Did the damage “happen in the middle of employment” (COE)? That is often a authorized problem. Did the WCJ adequately determine whether or not the damage occurred throughout the time, place and circumstances of applicant’s employment?

Within the NPD of Hagan v. Metropolis of San Bernardino, 2023 Cal. Wrk. Comp. P.D. LEXIS 374, the WCAB challenged the strictures of this paradigm when a psychiatric damage was concerned. Right here’s what occurred.

On 9/18/2022, a name got here in over Officer Hagan’s police radio {that a} bike accident was blocking site visitors 5 miles from his put up on the San Bernardino airport. Fearing his girlfriend is likely to be concerned, Officer Hagan left his put up, together with his supervisor’s permission, to analyze.

When he arrived on the scene, he discovered his girlfriend, a sufferer of the accident, in a life-threatening scenario. A number of weeks later, Officer Hagan filed a declare for a psychiatric damage due to this incident. The Certified Medical Evaluator’s (QME’s) report did discover a causal connection between the employment and the damage. Thus, applicant met his burden of proving AOE. Since COE is a “authorized problem,” the WCJ didn’t require an inspecting doctor to weigh in on this. As an alternative, the WCJ reviewed the proof and determined Officer Hagan was on a private errand on the time of the damage. He subsequently issued a “take nothing.”

Upon Reconsideration of this case, the WCAB took problem with a important query concerning the evaluation of COE. At what time, place and circumstance did applicant’s psychiatric damage start? The WCJ had issued a choice on “when” the psychiatric damage occurred, with no substantial proof (medical or in any other case) to again it up.

Nobody had requested the QME these important questions: Did the damage happen when Officer Hagan first obtained phrase of the accident on his dispatch radio and knew his girlfriend may have been concerned? Or, was it later, when the ER doctor on the hospital informed applicant that his girlfriend would probably not survive the evening? If the previous, a discovering of COE is likely to be probably. If the latter, possibly not. Though COE is often a authorized problem for the WCJ to determine, with a purpose to pinpoint the precise time when the psychiatric damage occurred, “substantial medical proof” was required.

Based mostly on the above, the WCAB vacated the WCJ’s “Take Nothing Order” and held that “Substantial medical proof” was required to find out whether or not the psychiatric damage occurred in the middle of employment. The matter was returned to the trial degree to develop the medical report.

2. Raters of PD Might Be Specialists, However They Are Not Medical Evaluators

Per the WCAB en banc, Blackledge v. Financial institution of America (2010) 75 Cal. Comp. Cases 613, solely evaluating physicians are eligible to create “substantial medical proof” to outline elements for ranking entire particular person impairments (WPI) of injured employees.

Within the case of Nee v. Metropolis of LA, 2024 Cal. Wrk. Comp. P.D. LEXIS 197, the Agreed Medical Evaluator (AME) incorrectly used the Vary of Movement (ROM) methodology to find out the Entire Individual Impairment (WPI) for applicant’s damage. The lay rater testified at trial that the Diagnostic Associated Estimate (DRE) methodology (and not the ROM methodology utilized by the AME) was the proper methodology for use on this case as follows:

“Per web page 380 [of the AMA Guides], particular standards should exist to make use of the ROM methodology. To use the ROM methodology the next standards have to be met, two or extra ranges of: 1. Fracture. 2. Fusion or lack of movement phase integrity 3. Verified Radiculopathy 4. Any of the above occurring at a single degree on two DOI.

The notes then state none are current. No fracture, fusion, or any verified radiculopathy. Not even a single degree of radiculopathy. Not solely is the ROM methodology not correct for ranking on this case, however additionally it is not correct to make use of even DRE Class III.

It’s DRE class II with a ache add on that’s the correct methodology of ranking this case pursuant to the factors set forth within the AMA Guides.”

The Employees’ Compensation Arbitrator (WCA) relied on the lay rater’s evaluation upon which to base the WPI ranking. Though the lay rater might have been right, it’s not acceptable for a WCA to undertake a lay rater’s or perhaps a Incapacity Evaluator Unit (DEU) rater’s evaluation with no basis of “substantial medical proof.” That is one thing solely an evaluating doctor can present.

The WCAB rescinded the WCA’s choice and returned the matter to the WCA with the next directions:

“Within the additional proceedings, to the extent potential, the evaluating doctor ought to price applicant’s everlasting impairment underneath each the DRE methodology and the ROM methodology. The evaluating doctor ought to then decide the suitable methodology of evaluation explaining the choice just about the factors set forth within the AMA Guides. (AMA Guides, ¶¶ 15.2, 15.8, pp. 379–381, 398.) The evaluating doctor also needs to clarify whether or not a ache add on is acceptable underneath both or each strategies.”

3. Is the Classic Idea of “Vary of Proof” Nonetheless an Possibility?

Possibly so. Possibly no. In accordance with the NPD of Massia v. R.J. Donovan Correctional Facility, 2024 Cal. Wrk. Comp. P.D. LEXIS 165, the WCJ was not given adequate “substantial medical proof” at trial, upon which to base a everlasting incapacity (PD) willpower. So he did what he thought was the following neatest thing. He issued a PD discovering primarily based on the “vary of proof.” Upon Reconsideration, the commissioners disagreed together with his choice as follows:

“A ‘vary of proof’ strategy is extra continuously related to older instances, when events obtained competing QMEs and every QME’s report constituted substantial proof, which then fashioned a variety from which the WCJ may determine…Right now, vary of proof shouldn’t be typically used, however stays permissible when deciding between competing experiences, each of which represent substantial medical proof. ‘Vary of proof’ can’t be used merely to realize fairness, irrespective of how noble a objective that could be.”

The WCAB returned the case to the WCJ and instructed him to problem a discovering primarily based on “substantial medical proof” from a single evaluating doctor.

4. When Confronted with “Dueling Docs,” Which One Is Given Extra Weight?

The NPD of Bergen v. Dept of Transportation, 2024 Cal. Wrk. Comp. P.D. LEXIS 133 illustrates the premise that if an AME’s experiences represent “substantial medical proof,” then the AME’s proof ought to be chosen because the “high doc,” except good trigger exists to dismiss it.

In Bergen, supra, applicant’s industrial accidents included the next two “crimson flags,” which is usually a sign for a possible discovering of completely complete incapacity (PTD). In most of these instances an AME is particularly useful for steerage:

a. Six lumbar backbone surgical procedures (translation = “a number of failed again surgical procedures”); and

b. Day by day use of narcotic remedy required to operate.

In Bergen, supra, the WCJ relied on the AME’s experiences to seek out the applicant to be PTD, since events sometimes choose an AME due to that examiner’s experience and neutrality.

The WCJ additional defined,

“[W]orkers’ compensation regulation favors agreed medical experts in resolving medical disputes pretty and expeditiously. (Inexperienced v. Employees’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 1444, 26 Cal. Rptr. 3d 527, fn. omitted.) Thus, an AME’s opinion ought to be adopted, except there’s good cause to seek out that opinion unpersuasive. (Energy v. WCAB (1986) 179 Cal.App.3d 775, 782.)”

(See additionally Pantoja v. Jack within the Field, 2024 Cal. Work. Comp. P.D. LEXIS 304)

Observe Tip: This case additionally offers useful hints on methods to bullet proof an apportionment discovering to non-industrial elements.

5. The AME = the High Doc, However What If It’s the QME v. the PTP?

When the California Supreme Court docket speaks, individuals hear. That is very true when there’s a main paradigm shift within the regulation as occurred with the enactment of SB863 efficient as of 1/1/2013. One of many tenets of this laws was to set in play the one Panel QME system. Previous to this, events have been every allowed to safe their very own evaluating doctor. It was thought that with just one QME per physique area, the authorized course of could be significantly expedited. Nonetheless, after enactment of SB863, fairly an argument arose. What different sort of medical proof may a celebration acquire, along with the one Panel QME, to fulfill their burden of proof?

In the end, the query morphed into, “Whose report ought to be given extra weight, the one from the Panel QME or the one from the first treating doctor (PTP)?”

The California Supreme Court docket in Valdez v. WCAB (2013) 57 Cal. 4th 1231, 78 Cal. Comp. Circumstances 1209, had the reply, type of. If each experiences constituted “substantial medical proof,” then each experiences ought to be admissible as proof in a courtroom of regulation pursuant to Labor Code § 4605 and Labor Code § 5703(a). Okay, that solutions the query as to admissibility, however what about weight?

Within the case of Fields v. The Regents of the Univ. of California, 2024 Cal. Wrk. Comp. P.D. LEXIS 269, medical proof by each the PTP and the QME have been admitted into proof at trial. Who wins then? That might be the one with the extra correct “substantial medical proof.” Though that’s typically a tough name to make.

In Fields, supra, the WCJ determined to observe the QME who decided that applicant’s industrial publicity to mould was not the reason for her situation of aspergillosis. He then issued a “take nothing.” The QME’s opinion was opposite to that of the applicant’s PTP. The PTP did discover industrial causation, attributing it to applicant’s mould publicity at work.

When the case arrived on the Recon Unit, the WCAB referenced the case of Valdez supra, and concluded:

“As acknowledged by the Court docket in Valdez supra, sections 4060, 4064(d) and 5703 counsel an expansive moderately than limiting strategy by the Legislature concerning the admissibility of medical proof. Accordingly, the PTP experiences, which have been correctly admitted into proof, are to be given the similar weight because the QME’s reporting.” (Emphasis added.)

Nonetheless, for some cause, the WCAB in Fields, supra, didn’t depend on both the QME or the PTP on this case. As an alternative, they granted the appointment of a “common doctor” pursuant to LC §5701 and returned the matter to the trial degree to develop the report on the proof elicited from the “common doctor.” Go determine.

Within the NPD of Breen v. State of California, 2023 Cal. Wrk. Comp. P.D. LEXIS 156, the WCAB affirmed the WCJ’s reliance on the PTP to award applicant the next PD ranking for an industrial affect damage to his left knee than the QME decided. The WCJ completely mentioned the ranking course of utilized by every of the 2 evaluating physicians. He then defined in depth how and why he determined to observe the ranking of the PTP, over the QME. That is precisely the type of thorough dialogue wanted to find out if the report constitutes “substantial medical proof” upon which a WCJ might rely for an correct PD willpower.

6. When Does a “Common Doctor” per Labor Code § 5701 Know Finest?

It’s the motion of the WCAB in Fields, supra, that brings us to our concluding chapter on this saga of the “dueling docs.” When and why does the Labor Code § 5701 “common” physician “Know Finest?” The appointment in Fields, supra, was fairly sudden and surprising, with no actual clarification as to the premise for this choice.

Maybe some steerage may be discovered within the NPD of Gomez v. Sweetwater Union Excessive Faculty Dist., 2024 Cal. Wrk. Comp. P.D. LEXIS 130. After the trial, whereas inspecting the proof, the WCJ in Gomez supra, discovered that neither the proof authored by the QME in orthopedics nor the experiences by the PTP specializing in ache administration constituted “substantial medical proof.” The WCJ had no selection however to vacate his submission order and to order the events to develop the report utilizing a Labor Code § 5703 “common doctor.” Dr. Thompson, a ache administration specialist, was then appointed to find out applicant’s WPI.

There’s no clarification as to why the WCJ felt this appointment was obligatory. Nonetheless, if one reads the outline of the experiences summarized, the rationale for the common doctor’s appointment turns into evident.

In Dr. Thompson’s first report, he positioned applicant’s damage inside Class III of Desk 13-15 (20%–39% WPI). This was on account of his perception that applicant required a cane to ambulate.  Subsequently, he was supplied with arduous core proof that applicant may, certainly, stroll with out help. He then issued a second report whereby he positioned applicant’s damage in Class II of Desk 13-15 (10%–19%) Inexplicably, the WCJ rated applicant’s damage utilizing Dr. Thompson’s first report primarily based on that wrong historical past.

After defendant filed a Petition for Reconsideration, the WCAB issued an opinion which summarized the definition of “substantial medical proof.” They firmly defined that Dr. Thompson’s first report didn’t rise to this normal:

“Right here, Dr. Thompson’s preliminary impairment ranking was primarily based on the understanding that applicant used the cane to stroll nearly on a regular basis. Nonetheless, Dr. Thompson’s subsequent report…clarified that applicant was typically capable of stroll with no cane. Due to this fact, Dr. Thompson’s preliminary impairment ranking now not constituted substantial medical proof as a result of it was primarily based on info that have been now not germane, and Dr. Thompson adequately defined why Class 2 of Desk 13-15 higher mirrored applicant’s everlasting impairment. The problem of applicant’s everlasting impairment was a matter of knowledgeable scientific information, and the WCJ erred in rejecting the knowledgeable proof.”

7. Does Worker’s Self-Procured Medical Report Carry Any Weight?

Any article on “substantial medical proof” could be remiss if there was no dialogue as to medical experiences admissible underneath Labor Code § 4605. This part permits an worker, at their very own expense, to acquire a consulting or any attending doctor’s report associated to their case.

Nonetheless, any such report “shall not be the only foundation of an award of compensation.” A QME or PTP who’s already a certified evaluating doctor within the case is required to “tackle any medical report procured by this part and shall point out whether or not she or he agrees or disagrees with the findings or opinions acknowledged in that report and shall determine the bases for this opinion.”

Thus, the self-procured report could also be thought-about by a WCJ when formulating his or her authorized choice. Nonetheless, it can’t be the only foundation for that opinion.

8. “Substantial Medical Proof” Guidelines

It might be advisable for events to create a “substantial medical proof” guidelines comprised of the necessities of Labor Code §4628 and Regulation 8 Cal. Code Reg. § 10606.

As well as, the WCAB’s roadmap on this problem, Escobedo v. Marshalls (2007) 70 Cal. Comp. Cases 604 (Appeals Board en banc) ought to be reviewed at the least yearly as a reminder of the roles every participant performs within the course of. Particularly essential on this case is the admonition to evaluators to base ALL conclusions on “cheap medical likelihood.”

And there you’ve gotten it, a concise clarification of what constitutes “substantial medical proof” and the place to seek out it. And maybe extra essential, when it’s obligatory to fulfill your burden of proof, in order that when your case is teetering on the sting of prevailing, the medical proof will push your shopper’s case to victory.

Reminder: Board panel selections aren’t binding precedent.

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