Dos & Don'ts: What the Judge Wants to See in A Good Report

Sunday, July 18, 2004 | 0

This article by San Diego Workers' Compensation Judge Susan England, and all the articles in this five part series, are reprinted here with permission from the California Society of Industrial Medicine (CSIMS). These articles were first presented as a single paper at the CSIMS conference held in San Diego, June 25-27, 2004.

The opinions stated in this article do not represent the stance of the Workers' Compensation Appeals Board, its administration or any other person except the author.

Evidence

Medical reports submitted by treating physicians or evaluating physicians in industrial injury cases must be written with care to satisfy three main requirements:

I. Procedural requirements - is the report compliant with the law and the rules and regulations?

II. Is the report substantial evidence on the issue for which it is being submitted?

III. Is the language utilized understandable.

Reports are filed with the WCAB for consideration at trials at different stages of a claim. Trials may occur before any benefits will be provided so that medical reports are submitted on the issue of compensability. Sometimes, even when a case has been accepted or found compensable there are interim trials on issues of the kind of medical treatment being recommended or whether or not the injured worker is temporarily disabled or entitled to permanent disability advances. Finally a trial may occur as the conclusionary act in the case. No matter what manner of trial is scheduled, medical reports submitted must be compliant with the rules, must constitute substantial evidence and must be understandable.

The first thing judges determine is whether or not the medical report emanates from a treating physician. If it does not, then the exact status of the reporting physician needs to be determined. If a treating physician has requested a consultation with some other physician, the consultant's report may be admitted into evidence. However, if the report is from some other physician, then it must be determined whether it emanates from a validly selected QME - from a panel of doctors given an unrepresented injured worker pursuant to procedures set out in Labor Code Section 4062.1 - or from a QME selected by an applicant's attorney or a defendant.

Please note that there is a hiatus in the procedure for represented injured workers at this time since sections 4061 and 4062 were repealed effective April 19, 2004, and the new section for represented injured workers, Section 4062.2 was not made effective until January 1, 2005. It appears that for represented injured workers, any evaluations scheduled after April 19, 2004, do not have to comply with the procedures under the old Labor Code Sections 4061 and 4062, such that we are probably back to the pre-reform procedures in effect before January 1991, that procedure not requiring qualified medical examiners. However, like much of the law enacted in SB 899, we are not sure just what to do. The old approach seems the most likely.

If the report does not emanate from either a treating physician, or a properly scheduled QME, it is not admissible (except for the caveat above). (Please note: that the recent legislation provides for utilization reviews coming from persons that would not meet these code requirements. The law is supposed to have retroactive application, i.e. - not related to the date of injury. There is a question as to its constitutionality. The new law will be discussed briefly in the last portion of this presentation.)

If the procedure set out in the code has not been followed, the medical report, regardless of how wonderful it may be, will not be admitted into evidence. Assuming the report in question is from a source that would allow its admission into evidence, is it admissible on its face? The requirements set out in Labor Code Section 5703(a) are mandatory and reports that do not comply are inadmissible. Subsection (2) dealing with reports, provides:

"... reports are admissible under this subdivision only if the physician has further stated in the body of the report that there has not been a violation of Section 139.3 and that the contents of the report are true and correct to the best knowledge of the physician. The statement shall be made under penalty of perjury."

Please note that this section is applicable to both attending and examining physicians.

If the report complies with Section 5703(a)(2), is it also compliant with Rule 10606, a rule that discusses Physician's Reports as Evidence? Although a report may not be totally compliant with the entirety of the rule, in most cases it can still be admitted into evidence. However, even if admitted as a trial exhibit, if the report is so insufficient that it does not constitute substantial evidence, then it cannot be relied upon as the basis of a decision on any issue.

What constitutes substantial evidence? The most frequent failings are an inaccurate or incomplete history, a failure to review all the germane medical evidence, a failure to give the reasons for the medical opinion being espoused, internal inconsistencies in the report, tendering an opinion that inadequately covers the issue, and latent ambiguities that exist in light of the entire medical record.

The next article in this series will review problems with treating reports.

Contributed by California Workers' Compensation Judge Susan England.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.