A Medical Questionnaire from Doctor is not Evidence

Tuesday, February 21, 2012 | 0

Medical questionnaires are a wonderful tool to get a snapshot opinion from an authorized doctor. They are also cheaper than paying a doctor a witness and records fee (which can exceed $500). For less than $100 (typically), an employer/carrier (E/C) can find out maximum medical improvement, work status, and major contributing cause before it decides it wants to delve into expensive litigation.

It is best to use medical questionnaire after a conference with a doctor to confirm his opinions in the phone call. If a doctor is advising surgery is necessary, then the E/C knows to raise reserves. If the litigated issue is major contributing cause and the doctor confirms in the conference and subsequent questionnaire that the compensable accident is the major contributing cause, then at least the E/C can make a decision if it still wants to pursue a possibly futile denial.

But, remember, these questionnaires (usually in the letterhead of a defense counsel) are just tools.  They are not the be all, end all. If an E/C wants to adopt the questionnaire as its defense, it must follow through with deposing the doctor to confirm his opinions for the record. These questionnaires are not medical records and therefore are not afforded automatic admission in front of a judge, per Section 440.13(5)(e).

In Urquiza v. Don Greene Poultry, Inc., the claimant sought temporary total disability benefits (TTD) for a closed period of time. The E/C’s attorney, however, conferenced with the authorized doctor and confirmed with a medical questionnaire that the claimant could work for that closed period of time. The E/C denied the claim.

At trial, the E/C attempted to admit the questionnaire into evidence, but without the testimony of the doctor. As expected, the judge excluded the questionnaire from evidence since the doctor did not testify to its authenticity.  However, when the judge issued her order she analyzed the issue of the claimant’s credibility vs. the questionnaire’s credibility. Ultimately, she sided with the E/C.

The claimant appealed and the 1st District Court of Appeal reversed. The court’s reasoning was since the judge refused to allow the questionnaire into evidence, then the E/C had no medical evidence to support its denial of TTD benefits.  Just as a claimant requires medical evidence to support an award of TTD, an E/C must provide medical evidence to support a denial of TTD.

Since the judge questioned the credibility of claimant, the 1st DCA could only assume that the judge did not believe the claimant’s testimony that he had no idea the doctor put him back to work. Per prior case law, if a claimant can prove he was not made aware that his doctor put him back to work, then he is still entitled to TTD payments.

The 1st DCA reversed because there was no medical evidence in the record to support that the claimant was made aware he could go back to work. Since there was nothing to rebut the claimant’s testimony, the court found that the judge should never had put said credibility into question.

Don’t let this happen to you. Once again, medical questionnaires are a valuable tool.  If you get a positive response from a doctor (through your nurse case manager or defense counsel) do not assume that your defense is all sewn up. Authorize your attorney to take the doctor’s deposition and get the questionnaire’s opinion into evidence. In the Urquiza case, the E/C had the evidence but did not follow through. In the end, the claimant won benefits he was not entitled to.

Finally, I just want to touch on the ruling that if a claimant is not aware of his change in work status then the E/C must still pay benefits. This is a very real problem. Many doctors and their nurses/assistants are too busy or forget to inform claimants' of their work status. Just because a doctor sends a DWC-25 to the adjuster or employer does not mean the claimant is aware of a change in work status.

If an adjuster receives a return to work status, be sure to communicate this to the claimant. The same for employers or supervisors, especially if accommodated duty is available. Document the offer to the claimant that work is available per the new restrictions.  hat way, the clamant is aware of the change in restrictions and if he refuses, then a judge can determine the lost wages are deemed earnings per S. 440.15(6).

The Urquiza decision is here.

Michael Rabinowitz is a workers' compensation defense attorney and shareholder with Banker Lopez Gassler in Tampa. This column was reprinted with his permission from his Workers' Comp Corner blog.