Kwong and Mendoza: Steps to Prevent and Combat Poorly Written Med-Legal Reports

Friday, August 26, 2022 | 1

The Workers' Compensation Appeals Board must ground its decisions in substantial evidence. We practitioners must review medical-legal reports and any doctor’s depositions to ensure the medical record, when read as a whole, constitutes substantial evidence.

Joanna Kwong

If a review of the report and the entire record suggests that a judge cannot reasonably support a determination, then it is the practitioner’s role to develop and execute the strategy to remedy the issue.

Preparing for a successful
medical-legal evaluation

A successful medical-legal evaluation begins with a detailed initial file review. The initial analysis and preparation of the initial file review directs attention to potential issues and their resolution. Detailed review of applicant’s prior medical history, treatment and guidance on potential future medical care provides the road map for questions later asked to the medical-legal evaluator.

Jesse Mendoza

In reviewing the records, one may come across gaps or questions in applicant’s medical treatment, which may provide a basis for further exploration during applicant’s deposition. The deposition also provides a great opportunity to inquire into treatment locations to subpoena additional relevant records.

All relevant records, including applicant’s deposition transcript and medical reports from the alleged injury, as well as all prior records that may be relevant, should be furnished to the medical-legal evaluator for further review. Given the costs associated with record reviews, however, keep in mind the importance of relevant records. The parties need not, and should not, furnish all contents of a volume of subpoenaed records. Only those pages that are relevant should be furnished. 

This obviously requires an exchange of information well in advance of the examination date. A tailored cover letter is necessary to maximize the likelihood that the report will constitute substantial evidence (Labor Code §4062.3(a)). The parties are prohibited from ex parte communication with the evaluator, and information that a party proposes to provide to the QME must be served on the opposing party according to timelines set forth in Labor Code §4062.3 and pursuant to Suon v. California Dairies (2018) 83 CCC 1803 (en banc).

A detailed initial file review and robust notes facilitate prompt and timely disclosures to opposing counsel to ensure compliance with all statutory requirements. The necessary timelines for letter disclosure and objection create another opportunity to evaluate the current record and determine if any additional discovery is required.

An accurate medical-legal report starts with a carefully crafted medical-legal letter and includes specific questions for the medical evaluator to address. The attorney should communicate with the client to ensure that client questions are reflected in the cover letter to the evaluator. This will protect against subsequent costs the client may incur if an additional supplemental report is requested. If the doctor neglects an issue discussed in the cover letter, the party may request a supplemental report at no additional fee under 8 CCR §9795(c)

Evaluating a medical-legal report for substantial medical evidence

A medical-legal report must constitute substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion (Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (1983) 34 Cal.3d 159.)

Labor Code §4628 and 8 CCR §10606 specify the essential elements of a medical-legal report, which provide the foundational requirements necessary for substantial evidence. In order to constitute substantial evidence, the findings of the report must be predicated on reasonable medical probability (Escobedo v. Marshalls (2007) 70 Cal. Comp). The physician’s opinion may not be based on “surmise, speculation, conjecture or guess” (Garza v. WCAB (1970) 3 Cal. 3d 312). The physician’s report must not be “based upon inadequate medical history or examinations” (West v. IAC (1947) 79 Cal. App. 2d 711), and the physician must use a correct legal theory (Zemke v. WCAB (1968) 68 Cal. 2d 794).

Rehabilitating a medical-legal report

Labor Code §4628(e) requires that the evaluating physician take a complete history, review and summarize prior relevant medical records, set forth all conclusions and complete a declaration under penalty of perjury indicating the county wherein it was signed and dated: “Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report.” 

8 CCR §10606(c) provides that all medical-legal reports "shall comply with the provisions of Labor Code §4628 … failure to comply with the requirements of this section will not make the report inadmissible but will be considered in weighing the evidence.”

Failure to comply with any part of these rules calls the report into question. In such cases, the practitioner must consider the best avenue to rehabilitate or challenge the report to reach a disposition. The following options and issues should be considered when determining the necessary next steps to address a deficient report.

Supplemental report

If the report does not appear to be substantial evidence, the starting point is to consider whether a request for a supplemental report could remedy the issue. One common tool to increase the likelihood that the doctor will adequately address an issue in the supplemental report is to point to specific places in applicant’s medical record, such as evidence of prior injuries, surgeries, post-surgery range of motion, pain residuals and imaging in order to challenge the doctor’s initial opinion on causation and/or apportionment.

A supplemental report is cost-effective and may be a good option if issues can be adequately addressed in a follow-up report. Before proceeding with a request for a supplemental report, the practitioner should consider prior experiences with the doctor, such as how long the doctor usually takes to issue a supplemental report, whether the doctor has a history of deferring issues and whether the doctor has a reputation of providing adequate analysis in supplemental reports.

Deposition

A deposition may prove more helpful to inquire into the doctor’s medical opinion if his reasoning does not appear to be adequately explained in reporting. A deposition allows the attorney to delve into the doctor’s report, present new evidence, lay out facts and confirm generally accepted standards and treatises.

The question-answer format of a deposition allows the attorney to directly confront inconsistencies in the evaluator’s report in a succinct manner. However, unlike a supplemental report request, depositions can become open-ended endeavors that allow the evaluator opportunity to meander into areas not challenged. The practitioner should consider restraint and set a deposition when less fraught options have not yielded results.

Outside sources and new evidence

Sometimes the report is deficient because the evaluator is tasked with providing an opinion based on inconsistent subjective and objective complaints and findings. The medical report should be supported by underlying medical evidence, not just applicant’s subjective self-reported injuries and complaints.

If the records are materially inconsistent, a course of sub rosa surveillance may prove helpful to investigate applicant’s functional abilities. The footage can thereafter be provided to the evaluator for further review. Evidence that applicant is able to perform above his claimed functional abilities will undermine his credibility and, on the other hand, evidence that corroborates applicant’s subjective complaints could bolster his credibility.

Mandatory settlement conference

If the report appears incapable of remedy and the above options appear futile, or if the attempts to rehabilitate or change the opinion were exhausted, then the next step would be to file a declaration of readiness to proceed with the WCAB to obtain a hearing date for a mandatory settlement conference. 

It is best practice to identify the challenge to the report in the declaration of readiness. Do not make the board guess the issue, and plainly identify that you challenge the sufficiency of the reporting. The MSC hearing will provide the parties with a forum to discuss and potentially resolve disputes and challenges to a doctor’s findings and whether his report constitutes substantial medical evidence.

Trial

If the claim is not resolved at the hearing, the parties may proceed to trial. The practitioner should be prepared to prove that the evaluator’s report does not constitute substantial medical evidence according to the requirements set forth in Labor Code §4628 and 8 CCR §10606. The attorney should highlight deficiencies and inconsistent findings and provide adequate legal authority to support a finding that the report by the evaluator is not substantial evidence.

These options are common remedies that attorneys may seek in order to rehabilitate a deficient medical-legal report. Attorneys must ensure reports prepared by the medical-legal evaluator are substantial evidence. If not, take steps to develop and remedy the report so that a determination by the WCAB would be supported based on the record.

Conclusion

Incomplete, poorly written and statutorily deficient medical reports are a practice reality in our field. There are proactive steps, however, that we practitioners can institute to lessen the likelihood of a deficient report. Hopefully, the above refreshes prior knowledge and inspires the reader to identify and evaluate its process to maximize medical-legal effectiveness.

Joanna Kwong is an associate attorney, and Jesse Mendoza is a partner in the San Francisco office of Laughlin, Falbo, Levy & Moresi LLP, a California workers' compensation defense firm.