03 May 2018

California: Not Necessarily “Curtins” for “Outside” Medical Reports

I. Stepping off the Usual Path for MT and Medical-Legal Reports

The current workers’ compensation system in California is designed to provide two separate and structured medical evaluation paths. One path is for resolving medical treatment disputes and the other path is for obtaining medical-legal evaluations.

For medical treatment disputes, the legislature created the Utilization Review (UR) process and the Independent Medical Review (IMR) process. For all other disputes (such as, causation of injury or death; permanent and stationary date; causation of disability; etc.,) the legislature enacted the Agreed Medical Evaluator (AME) and Panel Qualified Medical Evaluator (PQME) selection process to enable parties to obtain a single Medical-Legal Evaluation on these issues.

In order to avoid “doctor shopping” and to keep medical costs down, the legislature envisioned that these two paths would be strictly followed. However, the courts have liberally construed various provisions of the Labor Code to allow parties to deviate, at least from the second of these two procedures, enabling other types of medical reports to be admissible as evidence in court proceedings, “outside” of the above-described process.

A Noteworthy Panel Decision (NPD) recently issued and discussed the conditions for admissibility into evidence of these “outside” medical reports.

II. Admissibility of “Self Procured” Medical Legal Evaluations

In the NPD of Curtin v. Sacramento County Office of Education (SCOE), 2018 Cal. Wrk. Comp. P.D. LEXIS 47 (NPD), the WCAB held that an AME report requested as part of Mr. Curtin’s 1999 specific injury case was admissible at trial in Mr. Curtin’s cumulative trauma case ending 5/1/2014, when in both the 1999 and 2014 cases, the applicant and the body part were identical.

Edward Curtin was a custodian for the Sacramento Office of Education. On 6/3/99, he sustained a specific injury to his back. (ADJ4714605). The case proceeded to trial and the WCJ issued a Findings & Award on 12/24/2002 in favor of applicant. On 7/2/2003, Fremont Insurance became insolvent and CIGA took over administration for payment of ongoing benefits in Mr. Curtin’s specific injury case of ADJ4714605. CIGA was thereby required to cover 100% of Mr. Curtin’s medical treatment for his back resulting from this 1999 injury.

In 2014, Mr. Curtin and CIGA agreed to use Dr. Steve Isono as the AME in case number ADJ4714605 “so as to determine the compensability of a yet-to-be-filed cumulative trauma . . ." Dr. Isono determined that applicant had sustained a cumulative trauma (CT) ending 5/1/2014 to his back while working as a custodian for the Sacramento Office of Education (SCOE), noting that the CT didn’t begin until after Mr. Curtin’s specific injury of 6/3/99.

Pursuant to 8 Cal. Code Reg. § 10401, each applicant must file a separate “Application for Adjudication” for each injury. Each injury must be assigned its own ADJ number. Based on Dr. Isono’s report, Mr. Curtin filed an “Application for Adjudication” for a new injury, which was the CT claim ending 5/1/2014 against SCOE (now permissibly self-insured.) This new claim was assigned case number ADJ9580032.

After Mr. Curtin and SCOE (now permissibly self-insured) appropriately followed the PQME process set forth in Labor Code § 4062.2 in the CT case ending 5/1/2014 (ADJ9580032.) Dr. James Chan was selected as the PQME. Dr. Chan evaluated Mr. Curtin on 6/11/2016. Apparently, Dr. Chan explained that Mr. Curtin’s current symptoms were merely an exacerbation of the original 1999 injury (ADJ4714605) and that there was no new injury in the form of a CT ending 5/1/2014 ADJ9580032 .

On 8/4/2016, Mr. Curtin and SCOE stipulated to dismiss the CT claim ADJ9580032 and it was so ordered.

Thereafter, CIGA petitioned to vacate the order dismissing SCOE in the CT claim ADJ9580032, as the dismissal of SCOE left CIGA with 100% liability for medical treatment for Mr. Curtin’s back injury. CIGA had hoped that SCOE would share in some of the responsibility for payment of benefits due to Mr. Curtin’s industrial back injury, but that would not happen, unless SCOE was rejoined.

Thereafter, 12/21/2016, SCOE was rejoined as a party defendant in the CT claim ADJ9580032. At the same time, the WCAB also consolidated the 1999 specific injury claim ADJ4714605 with the 2014 CT claim ADJ9580032.

The case was set for trial on two issues:

1. Did the CT claim ending 5/1/2014 arise out of and occurred in the course of employment (AOE/COE)?

2. Could Dr. Isono’s report (the one obtained as the AME agreed to by Mr. Curtin and CIGA in the 1999 specific injury case number ADJ4714605) be deemed admissible as evidence in the 2014 CT claim number ADJ9580032?

The WCJ held, “the Court is aware of no Labor Code provision or regulation that would allow a party or parties in an unrelated case to obtain a medical-legal evaluation addressing the merits of the yet-to-be-filed case. On that basis, and in accordance with 4060, 4061 and 4062, Dr. Isono's reports are ordered inadmissible in this case.” In addition, the WCJ ordered CIGA to take nothing by this claim, (such as, contribution or reimbursement from SCOE for medical expenses) because there was no medical evidence admitted at trial to support a CT ending 5/1/2014. CIGA filed a Petition for Reconsideration.

The WCAB first considered the following three statutes which allow admissibility into evidence of “independent” medical reports:

1. Labor Code § 4062.2(f):

“…Parties may agree to an agreed medical evaluator at any time…”

2. Labor Code § 4064(d):

“No party is prohibited from obtaining any medical evaluation or consultation at the party’s own expense.”

3. Labor Code § 5703.

“The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing:

a. Reports of attending or examining physicians.”

The WCAB held that Dr. Isono’s AME report was admissible as evidence in this case. In doing so, the WCAB reviewed the California Supreme Court case of Valdez v. Workers’ Comp. Appeals Bd. (2013) 57 Cal. 4th 1231, 78 Cal. Comp. Cases 1209, which held that parties in workers’ compensation cases are entitled to obtain medical reports at their own expense per Labor Code § 4064(d) and Labor Code § 4605 and request they be admitted as evidence at trial when the issue is other than a medical treatment dispute.

The WCJ was concerned that by allowing the AME report of Dr. Isono into evidence, it would be prejudicial to defendant SCOE. This was addressed by the WCB as follows:

“The WCJ's Opinion on Decision reflects concerns that permitting the parties to evaluate whether applicant has sustained a cumulative trauma claim before a claim is filed will be "extremely prejudicial" to the subsequent employer against whom that claim is ultimately filed…. It is not clear in what way this is prejudicial to the subsequent employer. SCOE was not a party to applicant and CIGA's agreement to use Dr. Isono as an AME and therefore, is not bound by his conclusions. SCOE was entitled to obtain its own medical-legal evaluation of applicant with respect to its separate claim. (See Navarro v. City of Montebello, (2014) 79 Cal Comp Cases 418 (WCAB en banc) [holding that an employee is entitled to a new QME when a new injury is claimed].) CIGA and applicant's agreement to use Dr. Isono as an AME did not affect SCOE's right to obtain a QME panel to evaluate applicant's cumulative trauma claim, which SCOE, in fact, ultimately did. SCOE had applicant evaluated by QME Dr. Chen, who came to a different conclusion than Dr. Isono regarding causation. Additionally, while ordinarily an AME's opinion is given more weight, Dr. Isono's opinions are not entitled to this deference because SCOE was not party to the AME agreement. (See Powers v. WCAB, (1986) 51 Cal Comp Cases 114.) It remains up to the trier of fact to determine which doctor's opinions are more persuasive on the issue of injury AOE/COE for the cumulative trauma claim and Dr. Isono's reports are not necessarily more convincing simply because they were first in time. We fail to see the prejudice to SCOE in admitting Dr. Isono's reports.”

The WCAB applied the above law to the facts in this case and concluded, “On remand, the WCJ should admit Dr. Isono's reports and consider them in determining injury AOE/COE for Case No. ADJ9580032.”

III. Rationale for Holding in Valdez

As stated above, the WCAB’s decision in Curtin, supra found its roots in the Valdez case. In Valdez, supra, Defendant argued that Labor Code § 4616.6’s “rule of exclusion” as evidence at trial of outside medical reports applied to not only medical treatment disputes but to all types of compensation benefits. This argument was soundly shot down first in the 2nd DCA’s decision in Valdez. The DCA explained their position as follows:

“It does not make sense, however, to construe section 4616.6 as a general rule of exclusion, barring any use of medical reports other than those generated by MPN physicians. Section 4616.6 states nothing of the sort. If the Legislature intended to exclude all non-MPN medical reports, the Legislature could have said so; it did not.”

The California Supreme Court affirmed the DCA’s rationale and decision in Valdez, supra and rejected defendant’s argument as follows:

“The employer's attempts to transform section 4616.6 into a general rule of exclusion rest largely on its insistence that MPNs, when established, must be the exclusive source of diagnosis and treatment for injured employees. The Legislature has imposed no such requirement. Section 4605 has long permitted employees to consult privately retained doctors at their own expense, and the amendments enacted by Senate Bill 863 maintain that right.”

IV. Conclusion

Before making an argument before the court either to exclude or to include a medical report “outside” the structured medical evaluation path created by the legislature, be sure to review the case law, and more particularly, the Labor Code sections and regulations mentioned in this article. A trial brief discussing admissibility will most likely help one prepare the argument thoroughly and will also assist opposing counsel, as well as the trier of fact, in accurately analyzing the issue.

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