IS THE MEDICAL OPINION ERRONEOUS? Part 2 of 6

By Jeff Stander

The Webster’s Collegiate Dictionary definition of erroneous encompasses the concepts of deviation from the right course, misleading and not conforming to truth or justice.  Where a medical opinion is erroneous, it will not be deemed to constitute substantial evidence.

In Ryan v WCAB (1968) 33 CCC 548, the employee’s claim of Injury AOE/COE to his spine was disputed by the employer based on the diagnoses of two physicians, who stated that he was either afflicted with a simple strain or was simply malingering.  The employee subsequently submitted to surgery, during which procedure objective findings were discovered which rendered the initial opinions erroneous.  The District Court of Appeal held that, because the initial diagnoses failed to consider this information, they were erroneous and would not be deemed to constitute substantial evidence.  (See also:  Walker v WCAB (2006) 71 CCC 1077)  

Where the diagnosis is incompatible with the mainstream of commonly accepted medical thought, it will be deemed erroneous and not substantial evidence.  In Baptist v WCAB (1982) 47 CCC 1244, the Independent Medical Examiner, based on his review of the pulmonary autopsy slides which failed to demonstrate the presence of asbestos fibers, concluded that the death was not industrially related.  On cross-examination, he admitted that if there were asbestos fibers in the pancreas, the fatal cancer could be deemed industrially related, but maintained reliance on a medical study which negated industrial causation.  On this basis, the WCAB denied death benefits.  The District Court of Appeal reversed this decision, noting that the IME’s reliance on the medical study was misplaced, particularly where other pathology tests did reveal the presence of asbestos fibers in the pancreas.

A medical opinion will be deemed erroneous and not substantial evidence where it is inconsistent with inferences that should be drawn from all facts.  In National Convenience Stores v WCAB (Kesser)(1981), the employee, on his second day on the job, fell from a box and sustained a minor orthopaedic injury.  For the roughly two year period after the minor injury, he was evaluated by several physicians, all of whom agreed that he was substantially exaggerating his symptoms.  One physician concluded that the substantial exaggeration was attributable to a psychiatric condition caused by the industrial injury.  Despite the fact that video evidence substantially repudiated his claim of limited physical activities, the WCAB awarded continuing Temporary Disability benefits and medical treatment in connection with the psychiatric condition.  On appeal, the District Court of Appeal annulled the decision, essentially holding that the opinion was erroneous because “ turning exaggeration and malingering into a compensable psychiatric injury on the basis that the malingering was unconscious would result in perversion of the workers’ compensation system.”

IS THE MEDICAL OPINION BASED ON GERMANE FACTS?

If a medical opinion is not based on current, essential facts, it will not be deemed to constitute substantial evidence.  In Fairview State Hospital v WCAB (Kurash) (1982) 47 CCC 1428, the employee sustained an orthopaedic injury.  None of the orthopaedic surgeons who examined her opined that she required future treatment.  One psychiatrist stated that she would require treatment, but failed to declare that her condition had reached a permanent and stationary plateau.  The other psychiatrist stated that she would not require future treatment.  The WCAB relied on the opinion of the initial psychiatrist to award future treatment.  The District Court of Appeal annulled the decision, noting that the opinion of the psychiatrist was not based on germane facts because he never declared the condition to have reached a permanent and stationary status.

The decision in Jones v WCAB (1968) 33 CCC 221 further illustrates the need for a physician’s opinion to be based on current facts.  Mr. Jones sustained a serious orthopaedic injury.  Prior to the issuance of the Stipulated Award, the employee was evaluated by a psychiatrist who opined that Mr. Jones did not sustain an injury to his psyche.  After the Award issued, Mr. Jones was committed to a psychiatric institution and timely filed a Petition to Reopen.  He was evaluated by two physicians who opined that his condition was 100% permanently and totally disabling.  The Trial Court and the WCAB elected to rely upon the opinion of the physician who evaluated the employee prior to his psychiatric hospitalization to deny further benefits. The Appellate Court reversed this holding, noting that the report of the initial psychiatrist did not constitute substantial evidence because it was not based on a current assessment of Mr. Jones’ condition.

Similarly, in Manpower, Inc. v WCAB (Stevens) (1996) 61 CCC 884 (writ denied), the Court properly disregarded the opinion of an AME regarding the issue of extent of disability in favor of the opinion of the treating physician where the AME last evaluated the employee two years prior to Trial and the individual remained under the care of the treating physician.  However, the mere passage of time will not render a report obsolete where the underlying facts did not change. (Lipoma v WCAB (1998) 63 CCC 645 (writ denied))  In order to demonstrate that a medical opinion is not substantial evidence on the ground that it was not based on current essential facts, a specific demonstration must be made.  InMinnear v Mount San Antonio College District (1996) 61 CCC 1061, the employee attempted to convice the Court that it should not rely on the opinion of the treating physician. However, he never specifically set forth in detail the reason that the opinion of the treating physician was no longer current or based on essential facts.

IS THE MEDICAL OPINION BASED ON AN ADEQUATE HISTORY?

At the very least, the physician’s opinions must be based on an adequate history to constitute substantial evidence.  Webster’s Collegiate Dictionary defines adequate as being fully sufficient.  Clearly, a medical opinion will not be deemed to constitute substantial evidence where the physician provided no medical history.  In West v IAC (Best) (1947) 12 CCC 86, the District Court of Appeal reversed a finding made by the Trial Court which relied upon the opinion of the treating physician that the medical condition was Temporary Totally Disabling.  The Appellate Court held that the opinion was fatally defective because it failed to set forth Ms. Best’s longstanding history of spinal symptomatology and objective findings.

If it is obvious that the physician’s opinions were based on an inadequate history, the conclusions can be potentially cured or clarified by providing the expert with data reflecting the complete history.  The information, secured through the procurement of records via a Subpoena Duces Tecum or authorization, will be conveyed to the physician either through a joint letter or at the time of a cross-examination via deposition.  The physician will be a position to travel one of three paths:  to modify his opinion, to reiterate his opinion, or, to express statements which will result in the opinion being completely discredited.  This was the outcome in the case of Twentieth Century-Fox Film Corp. v WCAB (Conway) (1983) 48 CCC 275.  There, the Trial Court issued an Order granting the employee with Temporary Total Disability benefits based on a psychiatric industrial injury.  The psychiatrist on whose opinion the Court relied stated that Mr. Conway complained of various stressors in the work place which precipitated the psychological trauma.  He was provided with some information reflecting the production of stress caused by totally non-industrial factors.  However, the expert, after reviewing this information, admitted that his “commentary was limited by inadequate information.”  The Appellate Court maintained that this admission reflected that the psychiatrist’s opinion was neither sufficient nor adequate to support the conclusions that the employment caused a psychiatric injury which resulted in Temporary Total Disability.

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R. Jeffrey Stander is Of Counsel to Stander Reubens Thomas Kinsey. Prior to joining the firm in 1982, he was associated with law firms exclusively handling workers' compensation and general civil matters, and acting as in-house counsel for Western Employers' Insurance Company. Mr. Stander is a Certified Specialist in Workers' Compensation law, a member of the Assessment Committee of the Lawyers’ Assistance Program for the State Bar of California, and has been an instructor for the Insurance Educational Association. He received his Bachelor’s degree from the University of Southern California and his Juris Doctor degree from the University of San Fernando Valley College of Law.  (www.srtklaw.com/attorneys)