DOES THE MEDICAL OPINION AVOID CONJECTURE AND SPECULATION? Part 6 of 6

By: Jeff Stander

The importance of determining an employee’s entitlement to workers’ compensation benefits, and the employer’s corresponding responsibility to furnish same, cannot be based on a physician’s guess.  It must be more than a figment of the doctor’s imagination and be based on the practitioner’s knowledge, education and experience.  This concept was explored by the Court in Rasmussen v City of Petaluma2016 Cal. Wrk. Comp. P.D. LEXIS 621.  There, Mr. Rasmussen claimed that he sustained an industrial cumulative trauma to his heart, cardiovascular system, hypertension, pseudoaneurysm of the left carotid artery and other conditions.  He was evaluated by a QME who concluded that, although there was no medical research supporting the conclusion that the pseudoaneurysm was attributable to hypertension or any other psychological or physical stress, there did exist literature supporting the link with a blunt trauma to the neck.  The physician opined that a blunt trauma probably occurred at some point during Mr. Rasmussen’s longstanding employment of a firefighter.  There was, however, no specific or direct evidence of any such event.  The Trial Court awarded benefits based on the QME’s conclusion.  Defendant’s appeal was granted.  In annulling the decision of the Trial Judge, the Appellate Court held that the QME’s opinion did not constitute substantial evidence because it was speculative:  there was no evidence of any blunt trauma, industrial or otherwise.

Similarly, in Wehr v WCAB (1985) 50 CCC 165, it was alleged that the employee died as a result of industrial exposure to chemicals and bacteria.  During the course of Trial, the autopsy report was presented which specified that the cause of death was endotoxic shock due to fatty infiltration of the liver.  The products that decent utilized in the performance of his job duties were enumerated, without a description of the actual chemical compositions.  Two physicians evaluated all of the data and concluded that the cause of death was unknown.  One of those physicians expressed three possible causes of Mr. Wehr’s demise.  Despite the physicians’ statements that the cause of death was unknown, problematical and undetermined, the Trial Court awarded death benefits, claiming that because no non-industrial cause of the liver disease was discovered, there existed a link between the condition and the employment exposures.  Defendant’s appeal was granted.  In finding that the burden of proving injury AOE/COE was not fulfilled, the Appellate Court stated that there was “simply no evidence of the cause of death itself, let alone evidence that the death was industrially related.”  Thus, whenever the cause of the condition cannot be determined, it will always be speculative for a physician to express an industrial relationship.

A physician’s conclusion based on scientific studies or tests will not be deemed speculative or conjectural.  (Scott Co. v WCAB (1983)  Similarly, a medical opinion based on statistical correlations and relationships of probabilities will not be deemed speculative or conjectural.  (Skip Fordyce, Inc. v WCAB (Barry) (1983) 48 CCC 904)

Recently, the Court of Appeal, in the unpublished decision of County of Sacramento v WCAB (McCartney) (July 11, 2017) was presented with a scenario in which the employee alleged that his dermatologic actinic keratosis was caused by his exposure to the sun while acting in the capacity of a Deputy Sheriff.  Mr. McCartney was evaluated by a Board Certified Dermatologic QME who conducted a thorough exam, obtained a detailed history perused the voluminous records and medical literature studies.  The physician noted all of the employee’s sun exposure, both during his employment and prior thereto. In her reports and deposition testimony, she stated that although the sun exposure during the course of employment might have played a role in the development of the actinic keratosis, it would be speculative to assign any percentage of contribution to the job given the absence of scientific evidence to ascribe any particular level of causation to on the job sunlight.  The Trial Judge relied on the QME’s opinion to deny benefits and held that, given the record, it would have been speculative to assign the employment as a causative factor in the development of the condition.  The WCAB reversed that decision, holding that the proper interpretation of the QME’s opinion was that sun exposure on the job did contribute to the employee’s condition.  The employer filed a Petition for Writ of Review.  The Appellate Court, in annulling the decision of the WCAB, related that the QME’s opinion constituted substantial evidence upon which to predicate a finding that there was no industrial injury because “she took great pains to explain (repeatedly) that it was not possible to attribute the cause of McCartney’s condition to any particular period of exposure to the sun and therefore it was nothing more than speculation to identify the work related exposure as a contributing cause.

CONCLUSION

Insuring that physicians generate opinions that constitute substantial evidence is absolutely essential in assigning the rights and obligations of the parties in the workers’ compensation system.  All factual discovery should be completed prior to the comprehensive medical exam.  Deposing the employee will secure the individual’s under oath testimony regarding not only regarding the mechanics of the alleged injury, but also the complaints and limitations attributable to the trauma.  Obtaining an accurate job analysis or job description will enable the physician to assess the existence, if any, of a causal link between the job duties and the claimed injury.  Procuring all relevant medical and employment records will enable the physician to place the allegations regarding causation as well as nature, extent and duration of disability in their proper context.  Where appropriate, conducting surveillance followed by surveillance will result in a demonstration of an inconsistency between the employee’s claimed limitations as expressed to the physician and his activities conducted outside of the doctor’s office.  Once all of this data is marshaled, it must be transmitted to the physician in a fashion compatible with Labor Code Section 4062.3 and CCR Section 35(e).  Upon receipt of the report, it must be carefully scrutinized.  Do the opinions constitute substantial evidence based on fulfillment of all of the above-referenced criteria?  If the physician’s opinions are deficient, they must be immediately cured, either via the generation of a supplemental report or cross-examination.  This will serve to avoid the expenditure of time, money and effort associated with an appeal.

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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)