14 Nov 2014

California: Tips for Stips & More

What if Defendant “#1” and applicant agree to use an AME in a case, but Defendant “#2” does not. Will Defendant “#2” be bound by the findings of the AME it never agreed to use? These questions and more were answered in the recent Noteworthy Panel Decision (NPD) of Lorenz v. Encino Hospital Medical Center, 2014 Cal. Wrk. Comp. P.D. LEXIS 410 (lexis.com), 2014 Cal. Wrk. Comp. P.D. LEXIS 410

At the time of his first injury, Lawrence Lorenz was a 56-year-old x-ray technician who sustained three industrial injuries to his low back as follows:

1. Specific injury – 2000 (Employer = Tenet Health Care)

2. Specific injury – 11.10.2005 (Employer = Tenet Health Care)

3. Cumulative Trauma (CT) period of 6.1.2008 - 4.15.2010 (Employer = Prime Health)

During the period of Mr. Lorenz’ employment, his initial employer, Tenet Health Care (Tenet) was bought by Prime Health (Prime). Only defendant Tenet and applicant agreed to use Dr. Ainbinder as the AME. Prime did not agree to use Dr. Ainbinder as the AME for their period of liability. The AME evaluated the injured worker and issued a report.

I. Stipulation to P&S date at the MSC

At the Mandatory Settlement Conference (MSC), the two defendants and the applicant completed the MSC statement. One of the stipulations was that the injured worker was “permanent and stationary” (P&S) on 3.15.2006. Ooops!

Tenet was able to settle their liability for the two specific injuries which left Prime as the sole defendant at trial. Tenet claimed they were off the hook for liability since applicant stipulated to a P&S date of 3.15.2006, two years before Tenet’s CT period began. Therefore, defendant Prime claimed applicant stipulated to the fact that “he did not have an injury.”

Applicant attorney explained that the P&S date had been written into the MSC statement by the Tenet attorney and that the stipulated to P&S date applied only to the specific injuries dealing with Tenet. The applicant did not intend to stipulate to the P&S date of 3.15.2006 as to the CT claim with Prime. Nevertheless, defendant stubbornly insisted on listing this as an issue for trial.

Labor Code Section 5702 states:

“The parties to a controversy may stipulate the facts relative thereto in writing and file such stipulation with the appeals board. The appeals board may thereupon make its findings and award based upon such stipulation, or may set the matter down for hearing and take further testimony or make the further investigation necessary to enable it to determine the matter in controversy.”

The judge discussed the issue and explained that although stipulations between the parties are encouraged, they are not binding until the court says they are binding. After giving the parties an opportunity to be heard on this issue, the judge rejected the notion that applicant stipulated he did not have injury.

The judge referred to the following quote from the recent Court of Appeal case of Benavides v. WCAB (2014) 227 Cal.App.4th 1496, 79 Cal Comp Cases 483 , as follows: “an award based upon a stipulation may be reopened or rescinded if the stipulation has been 'entered into through inadvertence, excusable neglect, fraud, mistake of fact or law, . . . or where special circumstances exist rendering it unjust to enforce the stipulation. . . .’ (Citation.)”

The judge added that pursuant to 8 Cal. Code Reg. § 10492 pleadings can be amended to conform to proof and were so deemed amended in this case to clarify that the P&S date stipulation was contrary to the evidence.

II. Admissibility of non-agreed to AME

As stated above, Dr. Ainbinder was chosen as the AME in this case by the defendant Tenet and applicant. Defendant Prime never agreed to Dr. Ainbinder as the AME. Therefore, Prime argued that Dr. Ainbinder’s report was not admissible as evidence in the case against defendant Prime.

The judge explained that since Prime had not agreed to the AME, Prime was entitled to follow the procedures under Lab. C. § 4062.2 and select a Panel QME (PQME) to determine the issues in this case. However, Prime declined to avail themselves of this process and did not secure an evaluating physician. In fact, they participated in the deposition of the AME, Dr. Ainbinder. Applicant argued that since Prime participated in the discovery process by attending the deposition of the AME, they waived their right to object to his reports as evidence on the issues in this case.

The judge clarified that Prime did not waive their rights to a PQME by participating in the discovery process and asking questions of the AME at the deposition. However, since they neglected to follow Lab. C. § 4062.2 and select a Panel QME, the only medical presented at trial by an evaluating physician was that of Dr. Ainbinder.

The judge relied on a variety of Labor Code sections to support admission of Dr. Ainbinder’s report into evidence. The WCAB affirmed the WCJ and explained:

“In short, under section 4064(d), evaluations are admissible unless prohibited by a provision in section 4060 et seq. Under section 4061(j), evaluations by treating physicians are admissible, but in order for an evaluation by a non-treating physician to be admissible, it must be obtained through the medical-legal process in section 4060 et seq. Here, Dr. Ainbinder is not a treating physician. However, his opinion is a comprehensive medical evaluation obtained in accordance with section 4062.2, and therefore, its admissibility is not prohibited by section 4061(i). In other words, as a validly obtained section 4062.2 report, Dr. Ainbinder's opinion is admissible.”

After the defendant filed a Petition for Reconsideration, the WCAB affirmed the trial judge and explained that if Prime disputed the conclusions of Dr. Ainbinder, they should have followed the PQME process set forth in Lab. C. § 4062.2 and obtained a PQME. Having failed to do that, Prime had no basis to object to the admissibility of the report and the judge’s reliance on the report for his findings in this case.

III. AME’s Report as Substantial Evidence

The third primary issue for trial was whether the AME’s report constituted substantial evidence upon which the judge could rely as a basis for his findings in the case.

The defendant in the Lorenz case claimed Dr. Ainbinder’s report did not constitute substantial evidence as it was internally inconsistent. Defendant argued that the applicant claimed that his job duties after 2008 were changed to include more physical strain on his back, since after 2008, he was required to transport the patients from their hospital beds to the X-ray room. This increased strain on his back from transporting patients was deemed one of the primary causes for the cumulative trauma to his low back. However, under the section on work restrictions (which are still required under 8 Cal. Code Reg. § 10606, even though no longer use for permanent disability rating purposes), Dr. Ainbinder stated that applicant had no work restrictions.

Defendant stated at page 6:2-5 in his Petition for Reconsideration, “By not providing work restrictions to the applicant, Dr. Ainbinder is in essence indicating that the applicant’s current work duties are not causing the applicant added injury and that he can continue working his full duties without it causing him any further injury, disproving the existence of a continuous trauma injury.”

The WCJ discounted defendant’s “internally inconsistent” theory by saying, “…while a modification of job duties may be evidence of permanent impairment, there is no requirement that an injured worker have permanent job restrictions.”

Generally, in order to constitute substantial evidence the medical report must be legally sound and comply with Lab. C. § 4628, along with the companion regulation 8 Cal. Code Reg. § 10606, which includes the following requirements for a valid medical report:

(a) the date of the examination;

(b) the history of the injury;

(d) a listing of all information received from the parties reviewed in preparation of the report or relied upon for the formulation of the physician's opinion;

(e) the patient's medical history, including injuries and conditions, and residuals thereof, if any;

(f) findings on examination;

(g) a diagnosis;

(h) opinion as to the nature, extent, and duration of disability and work limitations, if any;

(i) cause of the disability;

(j) treatment indicated;

(k) opinion as to whether or not permanent disability has resulted from the injury and whether or not it is stationary. If stationary, a description of the disability with a complete evaluation;

(l) apportionment of disability, if any;

(m) a determination of the percent of the total causation resulting from actual events of employment, if the injury is alleged to be a psychiatric injury;

(n) the reasons for the opinion; and,

(o) the signature of the physician. (NOTE: Electronic signatures by physicians have been deemed valid by the WCAB. See Rosemary Torres v. Auto Zone, 2013 Cal. Wrk. Comp. P.D. LEXIS 230 )

The Supreme Court in the case of Place v. WCAB (1970) 3 Cal.3d 372, 35 Cal. Comp. Cases 525, set forth the gold standard for medical opinions, and stated that the medical opinion shall NOT be based on any of the following:

> surmise;

> speculation;

> conjecture;

> guess;

> an incorrect legal theory; or

> an inadequate medical history or exam

In addition, the court in Place stated that in order for the report to constitute substantial evidence, the physician must set forth an adequate analysis for each of their conclusions.

The judge analyzed the AME’s report and concluded it met the above requirements for substantial evidence.

In essence, the judge concluded (and the WCAB agreed) that all the applicant needed in order to prove level of permanent disability and that his CT injury arose out of and occurred in the course of employment (AOE/COE) was a ratable medical report that constituted substantial evidence. Having found the report of Dr. Ainbinder to constitute substantial evidence, the judge concluded the injured worker met his burden of proof on both the issues of AOE/COE and level of permanent disability.

IV. Conclusion

Parties should be attentive as to how they complete all MSC statements. Parties should make sure the stipulations and issues are complete and accurate.

Plus, prudent practitioners are always prepared to provide the judge with their proposed rating strings. Although judges seldom request the proposed rating strings, it is required per Lab. C. § 5502(d)(3).

In addition, parties should make sure that they have listed all exhibits they will need at trial to prove all disputed contentions and that they are in compliance with 8 Cal. Code Reg. § 10629 to avoid sanctions. (See Bresler v. WCAB (Miller) (2012) 77 Cal. Comp. Cases 547 )

No one likes “gotchas,” least of all judges. The best way to avoid “gotchas” is to carefully prepare the MSC statement in the first place.