Success In Challenging Physician Opinion on Apportionment

Saturday, March 11, 2006 | 0

The following discussion occurred recently in the WorkCompCentral Professional Forums. The editors felt this discussion was of value to the community and thus have republished it here, edited for readability.

Q: Have any of you attorneys tried to challenge the doctor's opinion on apportionment? If so, with what success? I have this lingering feeling that even the most experienced orthopedist is taking a flyer when they opine that 50% of someone's disability "would have been present" notwithstanding the injury. Especially when the IW had been non-symptomatic up until the injury. This opinion in my case is based upon the presence of foraminal stenosis in the cervical spine and Grade II severe spondylolisthesis at L5-S1. Of course these observations are made after the injury, not before it.

In spite of my scepticism, I sense it would be futile to try to shake their opinions ----- or would it?

Anybody have any ideas how to proceed in this situation?

A1: Initially, if this injury was prior to 1/1/05, and you had the option of obtaining your own QME, why go with an AME? It's better to have dueling QME reports addressing apportionment, and letting the WCJ sort out which of the QME reports is better reasoned and substantial --- with the benefit of the doubt being given to the IW per the liberal construction of LC 3202.

However, at this point in time, you are stuck with getting the AME to either change his opinion, or to cast enough doubt on his 50/50 split so as to make his guesstulation (calculated guess) nothing more than surmise and speculation.

The en banc panel of the WCAB, in Escobedo, correctly notes, "a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion, not merely his or her conclusions. (Granado v. Workers' Comp. Appeals Bd. (1970) 69 Cal. 2d 399, 407 (a mere legal conclusion does not furnish a basis for a finding); Zemke v. Workmen's Comp. Appeals Bd., supra, 68 Cal.2d at pp. 799, 800-801 (an opinion that fails to disclose its underlying basis and gives a bare legal conclusion does not constitute substantial evidence); see also People v. Bassett (1968) 69 Cal.2d 122, 141, 144 (the chief value of an expert's testimony rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion, and it does not lie in the mere expression of the conclusion; thus, the opinion of an expert is no better than the reasons upon which it is based)."

However, notwithstanding the above mandates outlined in Escobedo, the WCAB overlooks the "bare legal conclusion" from defense QME Dr. Ovadia. In a "rush to judgment," Dr. Ovadia's opinion fails to outline "the material from which his "opinion is fashioned and the reasoning by which he progresses from the material to the conclusion" in determining, "it is medically probable that she would have had fifty percent of her current level of knee disability at the time of today's evaluation even in the absence of her employment at Marshalls."

From a plain reading of the case, this bare-boned assertion by Dr. Ovadia is unsupported by any form of evidence based medicine (EBM) studies, or any empirical data. It is just an unsupported assertion, and the determination of 50% is as unsupported as a finding of 40%, 25%, or 75% ----- any of which degrees of apportionment could just as easily have been Dr. Ovadia's approximation of disability arising solely from industrial causation. The Escobedo decision acknowledges that "substantial medical evidence establishing that these other factors have caused permanent disability" is a necessary requisite, but Dr. Ovadia's opinion is just an unsupported estimation.

Simply put, in the absence of specified EBM or empirical data, there is a glaring dearth of "material from which" Dr. Ovadia's "opinion is fashioned and the reasoning by which he progresses from the material to the conclusion." (Bassett) It is well-settled the WCAB may rely on the medical opinion of a single physician unless it is "based on surmise, speculation, conjecture or guess." (See Place v. Workmen's Comp. App. Bd. (1970), 35 CCC 525). Dr. Ovadia's approximation of permanent disability (PD), apportionable to a non-industrial asymptomatic degenerative pathologic disease, is clearly based on surmise, speculation, conjecture or guess, in the opinion of this author.

By taking this giant, and in my view, impermissible giant leap, the WCAB has issued a decision where the footing for the foundation is clearly on a slippery slope. If unchallenged, Escobedo will open the door to incongruous decisions apportioning pathology, as well as novel asymptomatic non-industrial factors as contributing to the PD sustained as a result of an industrial injury, thus mitigating the defendant's financial exposure by allowing the PD to be apportioned downward.

HKC, if I were you, I would depose your AME and seek explicit details of his specific basis for "the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion." (Bassett) What was the specific basis he relied upon to come up with a 50/50 split, as opposed to a 45/65 split, or a 40/60 split, or a 25/75 split?

If the IW was indeed totally asymptomatic prior to the injury, without any limitations whatsoever on his ADL (Activities of Daily Life), on what specific basis will the AME answer in determining a 50/50 split was appropriate?

If you can get him to sweat a little, and fail to specify "the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion." you may have a way to posit that his opinion is based on surmise, speculation, conjecture or guess --- and thus, not substantial evidence admissible at trial.

At this point, what do you and the IW have to lose? Go ahead and set the depo. Oh, BTW, it probably would be very helpful to hire a proficient, well prepared MD/JD to assist in the depo.

A2: As noted, you probably have very little to lose in deposing the AME on the issue. I am not as convinced that the sky is going to fall simply because the WCAB is following the legislative mandate to apply different rules on apportionment.

However it is important that you understand the criterion for apportionment. It is no longer necessary for a physician to conclude that a pre-existing condition would have been disabling absent the work injury/exposure. It is only necessary that the physician conclude that the pre-existing medical condition contributed to the disability as it currently exists. In may of the cases we have dealt with over the years the major component of the disability was clearly the prexisting condition since many of the prophylactic restrictions were imposed not because of the trauma of the injury but to prevent further deterioration of the pre-existing condition.

It is also ot necessary that the physician provide a precise opinion on the degree of contribution required, just an approximate percentage. I have talked to some physicians that are only going to use 4 or 5 different sets of numbers. Where there is minor contritubiton be one cause or the other, the break will be 90/10, if there is a definate but less than substantial cause, 75/25, equal causes 50/50. This way a physician can conclude the approximate percentages based on a level of contribution without having to specifically justify the exact amount of apportionment either way. As long as the physician meets the other criterion that makes the opinion substantial evidence as set out in Escobedo.

When one considers the lack of evidence for much of what has passed as medical opinion on the level of PD for the past 30 years, I am not certain that you are going to be able to insist that a physician provide any evidence based information for his opinion. It is nice if it is there (and may be for many kinds of conditions that have been carefully studied such as cardiac or pulmonary). However for most orthopedic claims the vast majority of opinons on PD are based almost completely on the physician's judgement as to the level of PD unsupported by anything of greater substance.

An that is part of the reason we are where we are.

A3: You bring up some good points. First of all, you don't necessarily have to depose the AME. You can, upon agreement with the D/A, submit interrogatories addressing the issues, jointly signed and submitted to the AME. This saves the costs of the deposition and "time is money," quite frankly. Think of not only the $$$ being expended, but the time out of your schedule, the D/A schedule, the doctors time (which is paid by the hour) and the jugde's time. Not to mention, if you go to trial and the issues aren't resolved, you will likely be remanded to go back to the AME anyway for a supplemental report.

I'm not making this up as I go; I just had a case this week where the same situation applied. The parties could not agree to apportionment and decided to submit the matter on "record," with no oral testimony. The WCAB judge decided that the evidence submitted was not fully developed and Ordered the parties to go back to the AME to seek a supplemental "report," based upon apportionment. Now mind you, the parties had already "deposed" the AME and submitted the deposition transcripts as evidence at trial. The WCAB Judge decided it still wasn't completely clear, even with the deposition transcripts, to make a finding or decision or award.

AA ended up filing a petition for "removal," based upon "irreparable damage to the I/W" and I just got a copy of the judge's response. It will now go to the P.J. and a finding, decision or Order will issue withing 30-60 days.

Think about the time frames here. There is medical apportionment and legal apportionment. AND, both have to be addressed.

Just my opinion, but when an AME is constantly deposed or "challenged" on their opinions, the parties may create some prejudice down the line. I agree that a "routine" 50% apportionment to pathology on every case isn't prudent. I also have to say that our few AME's that are left, let along the QME's have such a full plate trying to decipher apportionment and whether or not to rate under the old PDRS or the AMA Guides, that often times the reports leave a lot to be desired.

The best rule of thumb is to have a genuine AME letter drafted, jointly signed and submitted to the AME prior to the evaluation. Leaving things to chance is as big a gamble as winning the lottery. A stitch in time saves nine.

A4: In SoCal joint signature letters are custom and practice. In Northern CA, the parties write separate letters. Some defendants are very upset if the applicant's attorney writes the AME for a supplemental report and cc's the defendant without first obtaining the defendant's agreement.

However, if you look at LC 4062.3(e), it provides, "...Any subsequent communication with the medical evaluator shall be in writing and shall be served on the opposing party when sent to the medical evaluator." The section deals with communications with an AME or a panel QME.

So, I think you could just write a letter, cc the other side, however, a depo would probably be preferable. The AME, if asked in a letter, would tend to say they were right in the first place.

In a depo you could build a chain of questions leading to the result you want. Basically, you will want apportionment to be based on proximate cause, not an "indirect: or "remote" cause. Both L.C. 4663 and 4664 speak of "direct result" or "directly caused," rather than any and all causes, no matter how remote or indirect.

A5: I've always thought that one of the finest points of the art of being a trial lawyer is the effective cross-examination of experts. Unfortunately, because of the low risk nature of comp and typical AA high volume that dictates against taking expert depos not many AA or DA's for that matter ever developed the experience necessary to take an effective expert depo. That is a shame because almost every report presents excellent opportunities.

Apportionment presents a unique and excellent opportunity to run with the ball. Recall, apportionment is an affirmative defense. The burden of proof is on the defense. And, under Escobedo (this is not a new principle) the medical evidence must pass "substantial evidence", and not be speculative which is really a Kelly-Frye/Duabert standard of no junk science, no speculation. Ask any doctor outside of an adversarial process and they will admit that almost all apportionment built on generic degeneration or age components is rank speculation. So, you can attack just the apportionment aspect, enjoy the other AME findings and use your PTP to further trash the apportionment argument.

There are a few points to remember in cross-examining a medical expert on apportionment. First, the report generally is lacking in details and that can be exploited. For instance, on giving an opinion on apportionment, what peer reviewed materials were relied upon, what is the data to support degeneration in similar circumstances on peer reviewed studies, etc.? What was discussed with the injured worker with regard to daily activities v. work activities? The bottom line is that in any given context, there are thousands of things to ask. (I suppoe I don't have to point out the usual history errors, flat out wrong extrapolation of facts from the records, etc.)

A specific useful techinque for dismantling a generic degeneration/age apportionment argument is to ask the docotor to admit that micro trauma might contribute to degeneration, it might not, acute trauma might contribute, it might not, a person with this condition might go through life without problems and might not. Ask him if he is familiar with studies in peer reviewed journals that study persons with similar anomalies that remain asymptomatic as compared with those that do not. If he says yes, you have him. Ask him which ones and then ask him how they fit into his opinion. Did he rely upon them? Did he consider them? Did he ignore them? He says no, you have him since he did not consider the body of science on the issue. You then give the transcript to your PTP with the studies (there are various internet medical publication databases where you can do a boolean search and come up with the reports you need - you can buy them online or drop by your local med school library and copy away.)

Second, don't try to cross an expert on his field. He will murder you, as it is his expertise. It would be like him trying to cross you on the law - complete mismatch. You cross him on the law applicable to the case and the law of evidence. Chip away at the foundation, ignorance of legal principles, etc. Remember, lawyers and doctors speak different languages. For instance totally and permanently disbaled means one thing to us in a comp case, it means something else medically. You have to formulate the definitions and ask him to agree.

Lastly, if you notice the depo you are in control of the opening questioning. No doctor, no one for that matter, likes to look like a fool. So with a carefully crafted roadmap of questioning it is not difficult to get the expert to go where you want him to, so long as your inquries are scientifically reasonably, i.e., "Is it accurate to state, doctor, that microtrauma of daily living may contribute to further deterioration of the spine?" "Is it also fair to state that microtrauma of daily living might not cause further degeneration?" "So is it also fair to state that whether the microtrauma of daily living may or may not constrbute to futher deterioration?" "In some people microtrauma may contribute, in others not?" Once you have him going in this direction then you can continue chipping away carefully until to get to the admission that apportionment is speculative by its very nature.

Once you have the doctor committed to an answer, he will not likely reverse when the DA tries to rehabilitate, because no one likes to look stupid, or a flip flopper, or bought and paid for. So, I think it is advantageous to the AA to notice the depo.

As to money, sure you have to pay for it, and I have news for you. Deposing a doctor in comp is CHEAP! They get only 200/hr or 250/hr for AME's! In a civil context it will cost you three to five times that amount and there is no gaurantee you will get it back. In comp, you just file your lien and you will get it back absent unusual circumstances. Plus, the only way you get any good at doing them is to do them. Take a shot. You might be surprised at the result and gains some confidence in doing so.

A6: Initially, this discussion has brought some interesting points to this discussion. As pointed out, "It is also not necessary that the physician provide a precise opinion on the degree of contribution required, just an approximate percentage."

However, the other point is also quite germane: "Basically, you will want apportionment to be based on proximate cause, not an 'indirect' or 'remote' cause." Both L.C. 4663 and 4664 speak of "direct result" or "directly caused," rather than any and all causes, no matter how remote or indirect.

Here is the pertinent language in LC 4663(c): "A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries."

The posters above have valid points. One argument focuses on the "approximate percentage" and the other argument focuses on "the direct result of the injury."

I agree that only an "approximate percentage" is mandated --- and I also agree with Stew that the the "approximate percentage" must be based on "the direct result of the injury."

However, notwithstanding the fact the opining physician must only provide an "approximate percentage" that was "the direct result of the injury" --- the opining physician's conclusion, in order to be considered substantial, rather than being based on surmise, speculation, conjecture, or guess, "rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion, and it does not lie in the mere expression of the conclusion; thus, the opinion of an expert is no better than the reasons upon which it is based." (Bassett)

One of the above posts fully addresses this issue in quite a comprehensive fashion, and his well-founded, common-sense suggestions should be followed if you do choose to depose the AME. In particular, as our U.S. Supreme Court stated in Green v. California (1970), quoting from Wigmore, cross examination is the "greatest legal engine ever invented for the discovery of truth."

I really like the followintg observations and suggestions, which can be looked upon as 'practice tips':

"[T]he medical evidence must pass "substantial evidence", and not be speculative which is really a Kelly-Frye/Duabert standard of no junk science, no speculation."

"[O]n giving an opinion on apportionment, what peer reviewed materials were relied upon, what is the data to support degeneration in similar circumstances on peer reviewed studies, etc.? What was discussed with the injured worker with regard to daily activities v. work activities?"

"A specific useful techinque for dismantling a generic degeneration/age apportionment argument is to ask the docotor to admit that micro trauma might contribute to degeneration, it might not, acute trauma might contribute, it might not, a person with this condition might go through life without problems and might not. Ask him if he is familiar with studies in peer reviewed journals that study persons with similar anomalies that remain asymptomatic as compared with those that do not. If he says yes, you have him. Ask him which ones and then ask him how they fit into his opinion. Did he rely upon them? Did he consider them? Did he ignore them? He says no, you have him since he did not consider the body of science on the issue."

"[D]on't try to cross an expert on his field. He will murder you, as it is his expertise. It would be like him trying to cross you on the law - complete mismatch." (This is the reason I suggested seeking an MD/JD to assist in the depo --- he will understand the law, as well as medicine.)

"So with a carefully crafted roadmap of questioning it is not difficult to get the expert to go where you want him to, so long as your inquries are scientifically reasonabl[e], i.e., "Is it accurate to state, doctor, that microtrauma of daily living may contribute to further deterioration of the spine?" "Is it also fair to state that microtrauma of daily living might not cause further degeneration?" "So is it also fair to state that whether the microtrauma of daily living may or may not constrbute to futher deterioration?" "In some people microtrauma may contribute, in others not?" Once you have him going in this direction then you can continue chipping away carefully until to get to the admission that apportionment is speculative by its very nature."

I predict that there will many more 'apportionment' cases being run-up the flagpole, with disparate outcomes, depending on the specific factual situation in the case at bar.

The choice as to whether to "hold em or fold em" in any particular case hinges on the specific facts, history, and individual nuances of each case. You may have a good case to run up the flagpole here, or maybe you should wait for another one that is factually better.

The fact that your client told you, or the treating/evaluating physicians, "he really did have occasional aches and pains" prior to the industrial injury could very easily lead to an adverse outcome in this case. I would weigh that prior to making a decision as to whether or not to proceed with spending the dollars in cross examining the AME.

In Escobedo, the IW maintained that she was totally asymptomatic prior to the industrial injury, and able to bend, stoop, squat, and kneel, without any limitations whatsoever. I believe that if the tactics suggested by Armentia were used by the AA in Escobedo, the outcome might have been different --- in the appellate arena, but not at the WCAB level where the Commissioners were looking for a case to quickly implement, in a practical fashion, the 'new' apportionment standards of LC 4663.

A7: In Wood v. SCIF, 34 CWCR 15, we now have a case that specifically addresses what happens when a physician fails to delinate "how and why" the physician arrived at a conclusion in a report opining 50% apportionment to an asymptomatic spondylolisthesis was appropriate.

As was discussed previously on this thread, in People v. Bassett (1968) 69 Cal.2d 122, 141, 144, the court opined: "the chief value of an expert's testimony rests upon the material from which his or her opinion is fashioned and the reasoning by which he or she progresses from the material to the conclusion, and it does not lie in the mere expression of the conclusion; thus, the opinion of an expert is no better than the reasons upon which it is based."

In Wood, AME Feinberg failed to specify "how and why" he arrived at a 50/50 apportionment split. As a result, the WCAB reversed the trial judge's finding of apportionment. In this split decision, Commissioners O'Brien and Rabine noted that "expert medical evidence must explain how and why the underlying pathology was causing disability." "Dr. Feinberg's opinion did not include such an explanation and did not, therefore, rise to the level of substantial evidence."

"Commissioners O'Brien and Rabine observed that the AME's diagnosis was failed back surgery syndrome, without any mention for his statement that applicant would be 'better off today' if it were not for the underlying pathology. Although it is possible that applicant's surgery would have been unnecessary or that the surgery would not have failed in the absence of the spondylolisthesis, unexplanied possibilities are not reasonable medical probabilities."

In much the same way as the logical saying goes, "a rose is a rose," the same logic applies: a SWAG is a SWAG.

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