California: What Constitutes “Substantial Medical Evidence”?

Physicians went to medical school to use their skills to improve the health of their patients. The composition of medical-legal reports was not a mandatory class, nor was it even provided as an elective. Evaluating physicians pour their hearts and souls into the process of drafting an accurate evaluating report, only to be told later that their report does not constitute substantial evidence upon which a judge can rely for a decision on a particular area of the law. They throw up their hands in frustration and look to the attorneys for some guidance. The courts have been very clear in instructing lawyers to provide that guidance.

Set forth below are summaries of relevant legislation, regulations and case law that define what constitutes substantial medical-legal evidence.

I. Legal Requirements for a Complete Medical-Legal Report:

A. Labor Code § 4628

Labor Code § 4628 sets forth in part below, provides these essential elements of a medical-legal report:

> Evaluator must take a complete history.

> Evaluator must review and summarize prior relevant medical records.

> Evaluator must set forth all conclusions.

> Evaluator must provide a declaration under penalty of perjury indicating the county wherein it was signed and dated. (Emphasis added.)

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B. Regulation 8 Cal. Code Reg. § 10606

Regulation 8 Cal. Code Reg. § 10606 provides the following 15 requirements of a medical-legal report as follows:

(1) Date of the examination;

(2) History of the injury;

(3) Patient's complaints;

(4) Listing of all information received in preparation of the report or relied upon for the formulation of the physician's opinion;

(5) Patient's medical history, including injuries and conditions, and residuals thereof, if any;

(6) Findings on examination;

(7) Diagnosis;

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

(9) Cause of the disability; [Editor’s note: This concept is often confused with “cause of injury,” and parties should become thoroughly familiar with the distinction between both concepts, so as not to run into difficulty when presenting non-compliant medical evidence to the court.]

(10) Future medical care;

(11) 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;

(12) Apportionment of disability, if any;

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

(14) Reasons for the opinion; and,

(15) Signature of the physician. (In addition please note that 8 CCR §35.5 (b) requires each QME to state in the body of the report the date the exam was completed and the street address at which the examination was performed. If the QME signs the report on any date other than the date the examination was completed, the QME must enter the date the report is signed next to or near the signature on the report.)

(Emphasis is added above to the items that are most often missed or misunderstood by physicians and attorneys.)

Practice Tip: When communicating with the evaluating physician, attorneys must comply with all laws and regulations regarding “communication” and “information” with regard to that evaluating physician. Specifically, attorneys shall avoid any prohibited ex parte communication with that evaluating physician. See Labor Code § 4062.3 and Regulation 8 Cal. Code Reg. § 35 and WCAB en banc decision Maxham v. California Department of Corrections (2017) 82 Cal. Comp. Cases 136 (Appeals Board en banc).

C. Case Law

Various cases, from the WCAB noteworthy panel decisions to the California Supreme Court, have provided practical examples as to how to determine whether or not a medical-legal report constitutes substantial evidence. One of the one most frequently missed issues is the use of the term “reasonable medical probability” by evaluating physicians, which is required in order for a physician’s conclusion to constitute substantial evidence. (See Escobedo v. Marshalls (2007) 70 Cal. Comp. Cases 604 (Appeals Board en banc).)

In the case of Place v. WCAB (1970) 3 Cal.2d 372, 35 Cal. Comp. Cases 525, the California Supreme Court provided their own “checklist” of sorts for what constitutes substantial evidence in a medical legal report. Mr. Place was a truck driver who slipped and fell at work, but he did not report his injury for a lengthy period of time after it occurred. This led the evaluating physician to doubt whether the work accident actually occurred. The Supreme Court came up with a plethora of reasons why Mr. Place may have waited to report his injury. The Court explained that for the physician to conclude that the industrial injury did not occur based on applicant’s delay in reporting the incident was speculative. The following are additional issues the Supreme Court felt were key to determining whether a medical-legal report constitutes substantial evidence.

> The physician must use a correct legal theory. (See Zemke v. WCAB (1968) 68 Cal.2d 794, 33 Cal. Comp. Cases 358 (Supreme Court in Bank))

> The physician’s opinion may not be based on “surmise, speculation, conjecture or guess.” (See Garza v. WCAB (1970) 3 Cal.3d 312, 35 Cal. Comp. Cases 500 (Supreme Court in Bank))

> The physician’s report must NOT be “based upon inadequate medical history or examinations.” (See West v. IAC (1947) 79 Cal. App. 2d 711, 12 Cal. Comp. Cases 86)

D. Consequences for Failure to Comply

Although both the Labor Code and the WCAB regulation provide for the essential elements of a medical-legal report, there are different mandatory results for failure to comply with these rules:

Labor Code § 4628(e) states, “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.”

However, regulation 8 Cal. Code Reg. § 10606(c) seems a little less harsh, but probably ends up with the same result, and reads, “All medical-legal reports shall comply with the provisions of Labor Code Section 4628. … failure to comply with the requirements of this section will not make the report inadmissible but will be considered in weighing the evidence.”

In any event, failure to comply with any part of these rules usually means that the report does not constitute substantial evidence upon which a judge can rely as a basis for their opinion on a particular legal issue.

II. Example of Substantial Evidence Issue in a Guzman Rebuttal Case

In the Noteworthy Panel Decision (NPD) of Dawson v. County of LA, 2017 Cal. Wrk. Comp. P.D. LEXIS 28, Mr. Dawson was a deputy sheriff who industrially injured his spine and other body parts. Rather than complying with the strict rating from the AMA Guides, the Agreed Medical Evaluator (AME) used an alternate rating method in compliance with the rebuttal standards, set forth in the case of Milpitas Unified School District v. WCAB (Guzman) (2010) 187 Cal. App. 4th 808, 75 Cal. Comp. Cases 837.

Essentially, AME, Dr. Berman used the “range-of-motion” (ROM) method of the AMA Guides of Impairment (Chapter 15.8, pages 398 to 404) rather than the diagnosis-related estimates (DRE) method (Chapter 15.3, pages 381 to 384) to rate applicant’s spine injury. The judge followed the AME’s findings, and the defense filed a Petition for Reconsideration arguing that the medical-legal evidence did not constitute substantial evidence.

The WCAB affirmed the judge’s findings because the judge explained in detail why the AME’s report constituted substantial evidence as follows:

“Here, as noted above, Dr. Berman provided an adequate explanation for why the DRE method was not an accurate representation of the Applicant's permanent disability and why the ROM method was more appropriate.

"Notwithstanding the Defendant's critical characterization to the contrary, Dr. Berman did not speculate or guess in providing his medical opinions. He was given an adequate medical history and conducted adequate examinations, relying on the Applicant's objective findings in rendering his conclusions. Also, nothing in his report was shown to be erroneous. Since his reports were based on germane facts and reasonable medical probability, they were substantial medical evidence and the undersigned WCJ did not err in relying upon them.”

(Emphasis added.)

III. Conclusion

When developing the record for each case, the attorney should prepare a list of relevant burdens of proof that must be met at trial. Next to each burden of proof, the attorney should insert a reference as to where in the evidence this burden of proof can be found.

In addition, practitioners should develop another checklist for reviewing medical-legal reports and any doctor’s depositions to ensure the medical record, when read as a whole, constitutes substantial medical evidence upon which a judge can rely for their conclusions on all the relevant issues in any given case.

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