IS THE MEDICAL OPINION EXPRESSED WITHIN THE FIELD OF THE EXPERT’S EXPERTISE? Part 5 of 6

By: Jeff Stander

Would it be reasonable to rely on the opinion of a cardiovascular surgeon that a left knee arthroscopy is required?  Clearly not.  Any such opinion would not be deemed to constitute substantial evidence because it was expressed by a physician outside the realm of his/her expertise.  In Maxham v State of California 2011 Cal. Wrk. Comp. P.D. LEXIS 329, the employee alleged that he sustained an industrial injury to his respiratory system as a result of contracting an infection during the course of his employment resulting in Guillain-Barre Syndrome.  The Trial Court relied on the opinion of the QME to find the occurrence of injury AOE/COE.  Defendant’s appeal was granted.  The Appellate Court noted that the QME was Board Certified in the field of neurology.  However, it was held that any opinion regarding whether Mr. Maxham contracted the virus during his employment would be best explained by an infectious disease specialist.  Although the QME had received some training in internal medicine, his education was insufficient to qualify him to give an expert opinion in the field of infectious disease.

In addition to causation, the need for an expert to express the opinion within the realm of his/her expertise extends to the concept of extent of Permanent Disability.  In Nunez v T & W Farms 2011 Cal. Wrk. Comp. P.D. LEXIS 177, the employee sustained an industrial injury to his psyche and in the form of San Joaquin Valley Fever, affecting multiple body parts.  He was evaluated by several physicians, including specialists in the fields of orthopaedic surgery, internal medicine and psychiatry.  After the Court issued rating instructions based on these practitioners’ opinions, a recommended rating was issued.  The employer cross-examined the rating specialist and provided rebuttal evidence in the form of the testimony of an AMA Guides expert who contended that the extent of impairment was substantially less than that which was expressed by the various physicians.  The Trial Judge relied on that testimony to issue an award of nominal disability.  The employee’s appeal was granted.  The Appellate Court noted that the AMA Guides’ expert’s conclusions that the effects of the Valley Fever were self-limiting and had abated were expressed beyond his realm of expertise:  because he was not a physician, he certainly could not realistically express opinions on such medical matters as whether the effects of the disease were self-limiting or had abated.

IS THE MEDICAL OPINION BASED ON ADMISSIBLE EVIDENCE?

Consistent with the principle mandating that the physician’s opinion be based on an adequate and accurate review of all information is the requirement that said data be deemed admissible. In Redner v WCAB (1971) 36 CCC 371, the employee sustained an admitted industrial injury to his back.  The employer, while providing medical care and Temporary Disability benefits, was very suspicious regarding the legitimacy of Mr. Redner’s longstanding complaints and alleged limitations.  The services of a private investigator were utilized to conduct surveillance followed by sub rosa.  The investigator, under pretext, arranged for the employee to be invited to a party at which time Mr. Redner was provided with large amounts of alcohol and was persuaded to go horseback riding, which activity was filmed by the investigator.  The employer ultimately arranged for the film to be reviewed by two physicians who had previously examined the employee.  Neither the film nor those medical reports were offered into the evidentiary record.  Accordingly, Mr. Redner was awarded further Temporary Disability, Permanent Disability and medical benefits.  On reconsideration, the WCAB permitted the film and the two reports to be admitted into the evidentiary record, and, based thereon, held that the employee would not be entitled to any further benefits.  That decision was ultimately appealed to the Supreme Court which held that not only should the film and medical reports have been excluded from the evidentiary record because defendant waived its right to have this evidence admitted by failing to offer same at the time of Trial, but also the film should have been excluded by virtue of the fact that it was obtained as a result of “fraudulent inducement.”  The opinions of the physicians upon which the denial of benefits was based were predicated on evidence that was inadmissible.  In fact, such deceitful conduct could potentially subject the employer to a serious and willful complaint pursuant to Duprey v Shane (1952) 39 Cal. 2d 781.

Another situation in which the physician’s opinion is based on inadmissible evidence is found in the principles governing the provision of data to AME’s and QME’s.  Labor Code Section 4062.3(b) essentially provides that information that a party proposes to provide the QME must be served on the opposing party 20 days prior to the exam and, if there is an objection, the data “shall not” be furnished to the physician.  Labor Code Section 4062.3(c) requires the parties to agree upon the data to be transmitted to the AME.  An ex parte communication with an AME or QME is prohibited, and will result in the opposing party being afforded the opportunity to demand an exam with a different physician and the offending party being charged with contempt.  CCR Section 35(e) expressly forbids a party from sending to an AME or QME a med-legal report which had been rejected as untimely pursuant to Labor Code Section 4062.5, any report written by a physician other than the treating physician or an AME or QME, or, any medical report that had been found inadmissible by the Court.  Such a transgression occurred in the case of Mosby v Best Buy 2011 Cal. Wrk. Comp. P.D. LEXIS 229.  There, Mr. Mosby alleged that his job duties as a stock clerk supervisor caused an industrial trauma to his spine and psyche.  He was evaluated by an AME who reviewed video tape depicting the employee performing strenuous activities.  His report precipitated a fraud investigation and the assertion of five felony counts by the District Attorney.  Subsequent the generation of the medical report, Mr. Mosby had several ex parte conversations with the AME, which ultimately served as the basis upon which that practitioner’s reports were stricken by the Court.  Later, he was evaluated by several other physicians.  The Trial Judge ultimately awarded Ms. Mosby 100% Permanent Disability, based on the opinions of several physicians, each of who had reviewed the stricken reports authored by the AME.  Defendant successfully appealed. The Appellate Court held that the evidence upon which the Trial Judge relied did not constitute substantial evidence because they had reviewed the reports of the AME which had been deemed inadmissible.

IS THE MEDICAL OPINION EXPRESSED WITHIN THE REALM OF REASONABLE PROBABILILTY?

Contained within virtually every physician’s report is the phrase “the opinions are based on reasonable medical probability.”  What does that mean?  According to Webster’s Collegiate Dictionary, reasonable is defined as acting rationally under the dictates of reason.  Probability is defined as the appearance of reality or truth.  At the very minimum, this illusive concept precludes an irrational physician from expressing a falsehood.  At the maximum, is reasonable probability to be equated with scientific certainty?  This issue was presented to the Court in Rosas v WCAB (1993) 58 CCC 313.  In that case, the employee claimed injury to his back, legs and internal organs when he was exposed to raw sewage during the course of the performance of his job duties.  Several physicians who evaluated Mr. Rosas concluded that the industrial exposure to raw sewage caused Hepatitis B which resulted in substantial complications.  The employer’s medical expert opined that the exposure to raw sewage was irrelevant to the development of Hepatitis B and the debilitating complications.  The Court ordered an Independent Medical Examination.  That specialist opined that Mr. Rosas did not contract Hepatitis B from occupational exposure to raw sewage.  The Trial Judge relied on the opinion of the IME to deny benefits.  The District Court of Appeal annulled that decision, noting that “the lack of reported cases of waste water treatment workers contracting Hepatitis B required Mr. Rosas to prove medical causation by medical certainty,” which exceeded the parameters of the standard of reasonable medical probability.

If medical certainty is not required, will medical possibility suffice?  This issue was addressed by the Court in Diehl v WCAB (2017) 82 CCC 168 (writ denied).  There, Mr. Diehl sustained an admitted industrial injury to his back and subsequently claimed that he also injured his psyche and head.  The treating physician concluded that the ingestion of Suboxone in connection with the effects of the initial back injury “may” have caused the headaches and psychological disorder.  The Trial Court’s holding that Mr. Diehl did not sustain injury AOE/COE to his head and psyche was sustained because the physician’s opinion was rendered within the realm of reasonable medical possibility as opposed to probability.

Will this standard be met solely by the physician stating that the opinion was based on reasonable medical probability?  In Delgado v Kaiser 2014 Cal. Wrk. Comp. P.D. LEXIS 224, the Trial Judge relied on the opinion of the AME that Ms. Delgado’s condition was 100% P.D. based on “reasonable medical probability.”  Defendant appealed, arguing that the AME’S opinion did not constitute substantial evidence.  The appeal was granted:  the AME never explained his opinion and “adding the phrase reasonable medical probability to a statement in a report does not convert the statement into substantial evidence if the opinion is otherwise conclusionary, as in this case.”

On the other hand, the failure to utilize “magic words” will not prevent a physician’s opinion from being deemed to constitute substantial evidence.  In Bates v WCAB (2012) 77 CCC 636 (writ denied), the employee sustained an admitted industrial injury to his back and subsequently filed a Petition to Reopen claiming that the initial PD had increased based upon a compensable psychiatric condition.  Mr. Bates was evaluated by an AME who concluded that there was a “reasonable likelihood” that 95% of the disability was industrial with the remaining 5% being non-industrial.  The Trial Judge disregarded that opinion and awarded the employee 100% PD because the AME had not uttered the standard of reasonable medical probability.  Defendant’s appeal was granted.  In annulling the decision, the Appellate Court noted that the words likelihood and probability were synonymous.

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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)