IS THE MEDICAL OPINION BASED ON A HISTORY CONSISTENT WITH THE EMPLOYEE’S TESTIMONY? Part 3 of 6

By Jeff Stander

Testimony given under oath subjects the employee to the repercussion of a perjury charge in the event the communication is false.  Although a physician is required to state, under penalty of perjury, that the requirements of Labor Code Section 4628 have been fulfilled, the employee is not required to express a similar statement at the conclusion of the exam.  Where the history provided to the physician by the employee at the time of the exam markedly differs from the testimony that was given under oath, either during the course of a deposition or trial, the physician’s opinion will not be deemed to constitute substantial evidence.

In Georgia-Pacific Corp. v WCAB (Byrne) (1983) 48 CCC 443, the employee alleged that he sustained a psychiatric injury AOE/COE.  He provided testimony regarding several allegedly stressful incidents during the course of his longstanding employment.  The treating physician, on whose opinion the Trial Court relied in finding injury AOE/COE which caused Temporary and Permanent Disability, recited in his history a number of stressful events which resulted in a psychological disorder.  Conspicuously absent from his history was any mention of the fact that the employee filed the workers’ compensation action shortly after being fired from his job, which fact was admitted by Mr. Byrne during the course of Trial.  The District Court of Appeal annulled the decision noting that the inconsistency between the employee’s Trial testimony and the medical history provided to the physician rendered the opinion not to constitute substantial evidence.

The employee’s widow, in Mendoza v Huntington Hospital 2104 Cal. Wrk. Comp. P.D. LEXIS 157, claimed that her husband’s ultimate demise was caused by stress at work in that his hypertension was aggravated resulting in a stroke and subsequent death.  Prior to his death, Mr. Mendoza provided testimony regarding the allegedly stressful events in the workplace.  The treating physician was provided with a roughly identical history.  During the course of Trial, the existence of all of the allegedly stressful events was substantially repudiated by several employer witnesses.  The treating physician was also unaware of the employee’s longstanding hypertension, which fact was admitted by Mr. Mendoza during the course of trial.  Accordingly, the Trial Court’s holding that the employee did not sustain injury and death AOE/COE based on the conflict between the physician’s medical history and the events at Trial was sustained on appeal.

A similar scenario was presented in Salazar v Payless Shoe Source 2014 Cal. Wrk. Comp. P.D. LEXIS 729.  There, Ms. Salazar claimed that she sustained a cumulative trauma injury to multiple portions of her body.  She vaguely testified that her subjective complaints commenced after moving an item at work, and that, after the claimed injury, she completed her college education, started a career and didn’t seek any medical care for four years.  The reports of the multiple physicians did not contain this history, but simply stated that she was afflicted with multiple medical conditions.  The Trial Court, in noting the inconstancy between the Trial testimony and the contents of the medical reports, held that Ms. Salazar did not sustain injury AOE/COE.

Labor Code Section 5710 expressly permits the “deposition of witnesses. . . to be taken in the manner prescribed by law for like depositions in civil actions.”  Deposing the allegedly injured worker is a valuable tool in solidifying the assertions of causation and disability.  The physician’s report must be closely scrutinized to determine whether the version of events as recited to the expert witness is either consistent or divergent.  Any material inconsistency will preclude a physician’s opinion from being deemed to constitute substantial evidence and cannot be relied upon by the Court to award workers’ compensation benefits.

IS THE MEDICAL OPINION BASED ON A REVIEW OF ALL RELEVANT DATA?

In Kyles v WCAB (1987) 52 CCC 479, the employee performed the duties of an electrical transit mechanic which resulted in his undisputed exposure to polychlorinated biphenyls.  He claimed industrial injury to his skin, various internal organs and orthopaedic system.  He was evaluated by numerous physicians.  The Trial Court elected to rely on the opinion of the occupational specialist practitioner who concluded that the PCB exposure was not injurious.  The decision was reversed by the District Court of Appeal on the ground that the physician upon whose findings the Court relied admittedly failed to review the multiple reports of the orthopaedic specialist, which documented the fashion by which the PCB exposure adversely affected the orthopaedic system.  Thus, it is imperative for physicians to review all reports, including those that are beyond their specialty.

The failure to review records relating to a completely non-industrial condition can also serve as a basis for concluding that the physician’s opinion does not constitute substantial evidence.  This was precisely the outcome in Noriega v Best Western Town & Country 2016 Cal. Wrk. Comp. P.D. LEXIS 97.  In that matter, the Trial Court’s holding that the employee did not sustain injury AOE/COE was reversed because the Qualified Medical Examiner failed to review records detailing Mr. Noriega’s cancer condition.

There is a remedy that the Court my employ where there is a complete absence or insufficient medical evidence on an issue  (Tyler v WCAB (1997) 62 CCC 924 and McClune v WCAB (1998) 63 CCC 261):  the record can be reopened to be further developed pursuant to Labor Code Section 5906, which may involve a re-evaluation by the same physician or a new exam with a different practitioner. Howver, traveling this path consumes a substantial amount of time, energy and expense.  It is preferable to insure that a physician’s opinion is based on a review of all relevant records and constitutes substantial evidence prior to Trial.

A physician’s failure to review non-medical data may also serve to preclude the practitioner’s opinion from being deemed to constitute substantial evidence.  In M/A Com-Phi v WCAB (Sevadjian) (1998) 63 CCC 82, the employee sustained an admitted electrical shock injury at work.  He was evaluated by numerous physicians, all of who provided varying accounts of Mr. Sevadjian’s symptoms, limitations and complaints.  At the time of trial, the employee testified regarding the manner by which his activities were very limited and that his ability to perform normal, everyday functions was severely reduced.  Although video depicting Mr. Sevadjian gardening, driving, moving furniture and performing other functions without restriction or limitation was projected to three of the physicians, the Court proceeded to award 26 ¾ % P.D. based on the opinions of two physicians who had not reviewed the video but who had “discounted” the patient’s complaints.  The Trial Court’s decision was overturned based on its error in relying on the opinions of physicians who had not reviewed the video.  Again, all of this post-trial drama could have been avoided had the video been projected to all physicians.

IS THE OPINION BASED ON AN ADEQUATE MEDICAL EXAM?

Common sense dictates that a physician’s opinion be based on an actual evaluation of the allegedly injured worker, absent extraordinary circumstances.  Despite the advent of telemedicine, in which recommendations for minor treatment modalities are made in the absence of an actual physical examination of the patient, opinions regarding the issues of nature, extent and duration of disability must be based on the physician’s actual evaluation of the individual.  In Espinoza v Intergem 2012 Cal. Wrk. Comp. P.D. LEXIS 236, the employee sustained an admitted industrial injury to his low back and left knee.  Although he visited the office of his chiropractor, the evaluation was conducted via telephone.  Based on that “exam,” the physician declared the condition Temporarily Totally Disabling for 3 ½ months.  The Trial Court relied on this opinion to award the employee the disputed period of TTD.  The holding was reversed on appeal.  It was noted that “a phone conversation is clearly an inadequate method of examination” and, as such, the opinion would not constitute substantial evidence.

In limited, extraordinary circumstances, a medical opinion can be deemed to constitute substantial evidence in the absence of an actual physical exam.  In addition to those cases in which the employee’s death necessarily precludes an actual examination, a medical opinion based on medical and non-medical records can be deemed to constitute substantial evidence where the employee is not available to be examined.  In Smith-Hamilton v WCAB (2011) 76 CCC 265 (writ denied), the employee claimed injury to multiple portions of her body due to exposure to toxins in the workplace.  The QME concluded that, based on his review of all data, her fibromyalgia, gastrointestinal abnormalities and multiple sclerosis were not work related.  The Trial Court relied on this opinion to deny benefits.  On appeal, the employee contended that the Trial Court erred because she was never actually examined by the QME.  The Trial Court’s decision was upheld because the employee was housebound and was therefore unavailable for the examination.

A similar result was reached in Chirinos v Heartwood Cabinet 2011 Cal. Wrk. Comp. P.D. LEXIS 420.  There, the employee’s cumulative trauma injury action was settled with the elected defendant.  That entity subsequently asserted a Petition for Contribution against the co-defendant, which entity complied with the procedure necessary to have a Qualified Medical Examiner conduct a comprehensive medical exam.  Mr. Chirnos, who apparently disappeared after receiving his settlement check, failed to attend the QME exam, despite being Ordered by the Court to do so.  The QME nevertheless prepared a report based on his review of all medical and non-medical records that was favorable to the responding defendant.  The arbitrator relied on that report, which generated an appeal by the petitioning defendant, in which it was argued that the arbitrator erred in relying upon the opinion of the QME who did not actually examine Mr. Chirinos.  The appeal was denied, on the ground that the responding defendant had exhausted all efforts to have the 
examination conducted and that the QME’s opinion was based on all existing data.

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)