Questioning the need for a medical-legal examiner occurs more often than one would think. The decision can result in protracted and drawn out discussions and debate. Do you really need one? It depends, though it is often not necessary. Litigation in the Workers' Compensation arena is a game of strategy. It may surprise many to know that the legal issues and evidence in a claim often outweigh the medical issues and evidence, despite emphasis being placed in the exact opposite manner. There is no one-size-fits-all solution. However, the use of a medical-legal evaluation is simply not necessary in many psychiatric claims.
Whether or not an injury "arises out of and in the course of employment" (AOE/COE) is the cornerstone of any claim. There is no claim unless injury is proven. There are two sides to the equation, yet we see the majority of medical opinions focus primarily on an "event" happening at work (COE). We often see little discussion and medical opinion addressing whether or not the injury actually arose from a condition or incident from employment (AOE). Little time is spent on the history of the applicant and other stressors. Why? At the time of an examination, a doctor hears only one side of the story. From the moment an applicant enters a doctor's office after reporting a claim, it is their opportunity to present their side of the story. They tell the doctor where the event occurred, what they were doing, and why they feel it is related to work. It is a one-sided event. Add in the subjective complaints and presto! We have a compensable injury. However, injury, pain, or other problems are not compensable merely because signs manifest while on the job.
How many times during the investigation stage of the claim (Labor Code § 5402) have you seen a complete picture of the claim provided to a primary treating physician? Are all the records available subpoenaed? Are the deposition of the applicant and witnesses complete? Is surveillance performed? Are all the stressors in one's life completely examined? Rarely ever will you see this level of investigation completed in the delay period. The investigation is generally not completed until well after a claim is denied. As the deadline for a decision on compensability draws closer, examiner and attorney alike may be nervous from straying from the warm embrace of a medical-legal evaluation. An opinion from a doctor on causation. Despite the multiple legal issues to consider in AOE/COE litigation, we rely upon the medical-legal process and a medical professional who often is not the best person to decide.
The Challenge Of The Psychiatric Claim
Psychiatric claims are classified either as a separate injury or a compensable consequence injury. The type of injury largely dictates whether or not a medical-legal examination is a good idea. They are a difficult injury to litigate and to defend because of their subjective nature, and due to the emotional investment of the applicant. The questions addressed by medical professionals and in the deposition process are delicate and embarrassing. We must also not forget that a primary or secondary treating physician will likely have already commented on the compensability of a psychiatric injury allegation when it is time to contemplate a medical-legal evaluation. Though their medical determination may be weak and flawed in a number of ways, evaluators often do not like to stray significantly from the findings of their peers. Thus, it can be difficult to get a medical-legal evaluator to completely disagree with the finding of another physician.
What "Else" Do You Have?
The decision on the use of a medical-legal examination depends largely on what "else" you have to prove your defense. In the courtroom, it is not what you know, but what you can prove! Do you have other discovery completed? Is there a deposition completed which addresses not only the history of the applicant, but also discusses all non-industrial stressors and comments on activities of daily living? Is there surveillance which demonstrates the applicant is dishonest when speaking with his medical providers? And perhaps most important, do we have an employer who is honest and willing to participate in the litigation process?
The formula for success is straight forward. The more evidence you have in your favor, the less likely a medical-legal evaluation is needed. And, the more it may actually hurt your case.
Deposition: A strong deposition will be able to give the judge a clear picture into not only the current alleged state of the applicant, but the reasons they are in their present state of mind. A judge only sees what the outside world sees. The same goes for medical providers. They do not go home with the applicant, run errands with them, or do anything with the applicant outside of the court room. What other factors have affected their present state of mind?
We must find out if there a history of abuse or domestic violence in their life. We must ask what types of relationships they have with others. If these relationships are affected, we must ask how and why. Is the applicant a felon? Were their stressors at work associated with personnel decisions, or other reasons? I once had an individual tell me in a deposition that the very recent, untimely and disturbing death of a long-term spouse had no psychological effect on him, yet lifting an item which resulted in back pain somehow made it unbearable to cope with life from a psychological perspective. This did not make sense to me.
Just as important as asking background questions, are questions about activities of daily living. In another case I handled, the psychological treating physician stated that the psychiatric injury affected this applicant in almost every aspect of daily life. Yet in the deposition, the applicant admitted to an almost identical life post-injury. The only changes were limitations on two chores, and a different method of obtaining a good cardio workout. How is that significantly "life altering?" The point is, we must draw out all the important psychological factors of an individual's life to really know what is the root cause of their psychological complaints.
Surveillance: The value of good surveillance cannot be measured. Surveillance which shows even the fairly mundane activities can hold great weight because of the frequent assertion that the psychological injury prevents even the most mundane of activities. It is also beneficial for impeachment purposes, to challenge the overall credibility of the applicant. If they are proven to be dishonest, both judge and doctor must consider the possibility that they are dishonest in their subjective complaints and allegations.
Subpoenaed records: Always, always, always check for other records. If there is a location mentioned in a medical report or at a deposition, it must always be considered for a subpoena. EAMS case searches are free and a great source for prior claims information. Index and EDEX searches should be mandatory on all claims. Updated searches every 6 months are a good idea. Once a claim has been filed in the past with a psychiatric component, the chance of a second claim with a psychiatric component is much more likely. Subsequent injuries and accidents are commonplace.
Employer participation and witnesses: A cooperative and honest employer witness is perhaps the most important tool to have. The applicant is almost always a sympathetic witness. The employer witness must also be one as well. They must be able to show that the items contained in a personnel file are accurate and that the actions of the employer were appropriate. This is especially true in litigation of good faith personnel decisions. A cooperative employer will make it easier to give you access to other witnesses and can often point you to activities the applicant was engaged in which may account for the alleged injury.
The Use Of An Agreed Medical Evaluator (AME)
Regarding all injuries in general, I am no longer a real believer in the use of Agreed Medical Evaluators. Agreed Medical Evaluators are highly unlikely to arrive at a decision that a claim is not compensable. Why? First, they see themselves as a negotiator of sorts between the parties. As such, they will follow in the footsteps of King Solomon and recommend "splitting the baby." For the applicant, they find a compensable injury, a recommendation for active treatment, and a finding of temporary disability. The defendant often walks away with a discount on future medical care, a more favorable interpretation of the testing for a lower GAF score, and some consideration for apportionment.
Second, they follow the money. Show me an Agreed Medical Evaluator that consistently finds injuries to be non-industrial, and I will show you an Agreed Medical Evaluator that is no longer used by the applicant. Show me an Agreed Medical Evaluator that finds low GAF scores, no apportionment, and drags temporary disability out, and I will show you an Agreed Medical Evaluator that is no longer used by the defendant. If you want to challenge the AOE/COE allegations of a psychiatric injury, an Agreed Medical Evaluator is not the way to go.
The Roll Of The Dice With A Qualified Medical Evaluator (QME)
If a Qualified Medical Evaluator is considered, bear in mind that you proceed at your own risk. There is no guarantee your panel of three providers will be stacked in your favor. The list could be all conservative, all liberal, or a mix of both. The strike process will not always be favorable. And let us not forget that applicant attorneys by in large do not like the Qualified Medical Evaluator process. Thus, they will find ways to escape the process. Such as requesting multiple reports in an attempt to have an unfavorable Qualified Medical Evaluator violate the time frames required for response. Or simply using the treating physician as a "rebuttal Qualified Medical Evaluator," if you will. Their argument is that all "relevant" medical evidence is to be considered by the trier of fact. Thus, the treating physician must have a say on the Qualified Medical Evaluator's findings.
The Fight Against The Treating Physician/> After assessing the arguments above, one would then ask, how do we overcome the findings of the treating physician? It may seem unreasonable to go to trial without medical evidence to refute the findings of the treating physician, and without the Qualified Medical Evaluator potentially doing this for you, your options are limited. I believe the best way to overcome many "applicant" treating physicians, is to simply use their reporting against them. It is common knowledge that every area of the State has their own set of physicians that receive the bulk of applicant attorney referrals. And we all know why — because they always give the answer the applicant attorney wants. I have also come to realize that the local Workers' Compensation Appeals Board judges also know these names, as they see them over and over again. This is an advantage. By reputation, they may already be under scrutiny before their report is ever read by a judge. Further, these reports are often largely boilerplate and contain similar language from report to report.
We also see that their reporting is incomplete. When completing a history they often do not go into the same depth as defendants do when completing a deposition. They often do not review deposition transcripts, or subpoenaed records. Failure to serve these documents or to request review falls on the applicant. Their analysis of testing is often brief and questionable when discussing AOE. Questionable or conflicting results are rarely discussed, or simply dismissed. Once the defendant has completed their depositions, subpoenas, and other forms of investigation, it makes no sense not to immediately file for a hearing and bring the issue of AOE/COE to trial, bifurcated from the other issues.
Another option is the Labor Code § 4050 evaluation. Yes, the reporting may not be admissible, but there are ways to have it entered into the record. More importantly however is its value in preparation for the deposition with the applicant or with the treating physician if needed. A review by a qualified psychiatrist or psychologist will enable you to challenge the tests applied by the treating physician, and to better understand which questions you may wish to pose to either party. It will help you evaluate the strengths of your case and more importantly, the weaknesses. This will later help in drafting of a trial brief, submission of evidence, and examination questions at the time of trial. And, it may also provide the insight for both examiner and defense attorney to accept a claim if proper.
What Are Your Injury Types?
The stand-alone psychiatric claim. Recommendation: Use of a medical-legal evaluation is likely not necessary. The stand-alone psychiatric injury is not a very common occurrence and usually manifests itself after a traumatic experience, such as witnessing a crime, or being the victim of one. An excellent example is a bank teller who was present at the time of a bank robbery, and may have had a violent act performed against them, or have witnessed a violent act against a co-worker or customer. The legislation specifically included a special provision for these types of injuries, to establish a lower threshold for a compensability decision. Labor Code § 3208.1 (b)(2) establishes a finding of substantial cause of the injury with a preponderance of the evidence. Due to the traumatic nature of the event, the AOE side of our equation becomes much easier for the applicant to assert (35 to 40% instead of 50+%), and much more difficult to defend. Even with substantial evidence of non-industrial factors, it is an uphill battle. If the claim is denied, the applicant will treat with an applicant-oriented treater. And as discussed above, they will focus primarily on the COE side of the equation.
With this in mind, why take the chance of another medical provider evaluating a sympathetic witness and noting the event was traumatic and thus clearly industrial? I do not see a non-compensable finding in these scenarios unless the evidence of pre-existing factors and a demonstration of "normal" activities of daily living is substantial. And the finding of a compensable decision by the medical-legal evaluator will only hurt your case. Unless you have strong evidence elsewhere to support a non-industrial finding, a medical-legal evaluation is likely unnecessary.
The compensable consequence psychiatric injury. Recommendation: Use of a medical-legal evaluation is likely not necessary. How many times has an examiner witnessed the following scenario: Worker sustains an accepted injury and receives care. Worker then procures the services of an applicant's attorney. Said attorney immediately transfers care to an "applicant-oriented" medical provider. During the first evaluation, this provider provides a form with check off box options that includes questions such as, "Since your injury, have you had problems with sleep?" "Since your injury, have you felt anxious or depressed?" "Since your injury, have any other body parts been bothering you?" The report from the new treating physician mentions psychiatric issues for the first time.
These are questions that are meant to draw out "yes" answers and increase the size of claims. Notice that they are phrased to imply these problems exist because of the claim, and not because of daily life. You do not see follow up questions that seek to clarify why they are having issues with sleep, anxiety, or depression. Or why the applicant has had at least one night of bad sleep since injury. Yet with a "yes" answer, a new compensable consequence claim is born, and the opportunity for yet another medical-legal evaluation.
We do not need to discuss the 6 month threshold argument brought forth in the Wal-Martdecision (Labor Code § 3208.3(d)), as that rule speaks for itself. Assuming it does not apply, (b)(1) of the same section states that by a preponderance of the evidence, the actual events of employment are predominant as to all causes combined of the psychiatric injury.1 Which means the applicant must reach the threshold of 50+% causation. Many of the arguments and defenses discussed for the "stand alone" claim apply here. You still need most if not all of the tools at your disposal, and the deposition becomes even more important. That is your opportunity to challenge the timing of the filing of the compensable consequence claim, or the manifestation of psychological symptoms.
The defendant must ask the applicant why there was no mention of depression or anxiety until after a change of treating physician. If they state that they did make mention of these issues to the provider, then it behooves the defendant to go back to prior providers and seek clarification. Point out there is no mention of these symptoms in their old reporting, in the physical therapy records, or that of the physician who offers a second opinion on invasive medical care. A rebuttal against the claims of the applicant is worth its weight in gold.
In light of these often unexplained changes, coupled with non-industrial stressors and firm evidence to support normal behavior and activities of daily living, a medical-legal evaluation is likely not necessary. Again, the applicant will already have a treating physician arguing there is an injury. However, their reporting may be incomplete. An Agreed Medical Evaluator or Qualified Medical Evaluator might be sympathetic to the applicant and each evaluation is subjective. They may clean up some of the treating physician report issues. The trier of fact must consider all legal evidence and medical evidence to ultimately arrive at a legal conclusion. It is more difficult to find a predominant cause where there is limited medical evidence to justify a finding. It makes no sense to do the applicant's job for them.
Good-faith personnel decision claims. Recommendation: The use of a medical-legal evaluation may be necessary. Defense of a psychiatric claim on a basis of a good faith personnel action is a mutli-step process, per the Rolda case.2 Under Labor Code § 3208.3(b)(3), a physician must find actual employment events are a substantial cause of injury. A treating physician may provide you with the correct percentages to argue your case. If they do not, a medical-legal evaluation will be necessary. Fortunately, regular treating physicians and medical-legal evaluators will want to establish that multiple employment actions resulted in at least a substantial cause of the injury, if not a predominate cause. It is important to try to have a multitude of personnel actions be found as contributing to the overall injury, as it makes reaching the threshold for arguing your defense easier. For an excellent analysis on complex good faith personnel issues, see the Cardozo decision.3
In conclusion, there will be no approach that can be used for strategy in all claims, and each case has a unique fact scenario. When considering the use of a medical-legal evaluation, all factors must be considered and carefully analyzed before rendering a final decision. If your evidence is strong and your witnesses are reliable, examiners and attorneys alike should never be afraid to proceed without the use of a medical-legal evaluation for psychiatric injuries.
1 Department of Corrections v. WCAB (1999) 76 Cal.App.4th 810
2 Rolda v. Pitney Bowes, Inc. (2001) 66 Cal.Comp.Cases 241, 245-247
3 San Francisco Unified School District v. WCAB (2010) 1 Cal. App. 4th, ADJ3474065
