How can the way medical evidence is presented make or break a case?
By Michelle Kral

Substantial medical evidence is a term we use often, but what really is the standard in regards to apportionment? The WCAB and commissioners have rendered opinions on what they think it is, but as always seems to be the case, there is some inconsistency in their decisions.

In Gilbert V. State of CA-IHSS, Dr. Sommer, the QME, issued 5 narrative reports and was deposed 3 times, leading to the issuance of several opinions on the apportionment between the injury that occurred in 2008 while employed by IHSS and the 1999 DOI while employed by Adventist Health. Dr. Sommer presented new medical evidence throughout the process and changed his mind considerably in regards to his apportionment of liability for future medical treatment between the dates of injury. Ultimately, it was determined that the doctor’s opinion did not rise to the level of substantial medical evidence as he stated himself it was speculative. This is where he went wrong: Substantial evidence can never be based upon speculation, it has to be based on medical evidence and expertise.  

The decision in Jensen v. County of Santa Barbara Dept. of Social Services comes out very different. The QME, Dr. Hyman’s opinion on apportionment was determined to be substantial medical evidence as it was based upon his evaluation of the Applicant, review of medical records, and his own medical expertise. He clearly stated so in his opinion. Although apportionment determinations are not “precise and require some intuition and medical judgement…it does not mean [the] conclusions are speculative.” Anderson v. Workers Comp. Appeals Bd. (2007) 149 Cal.App.4th 1369, 1382. The court also goes on to cite E.L. Yeager Construction v. Workers Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 930, stating that a physician’s determination on apportionment, “cannot be disregarded as speculative when it is based on his expertise in evaluating the significance of the facts.”

In both cases, the medical legal evaluator appears to review relevant medical records and renders an opinion on their medical expertise after an evaluation. So why are there very different outcomes? While the record does not have every report written by the doctors, nor every word of deposition testimony, after reading both cases, it appears what the WCAB is looking for is a confident opinion and analysis from the physician on apportionment. Dr. Sommer changes his mind every time he is asked about the topic, and although he is provided with new medical evidence each time, he does not fully explain why he is changing his opinion. Meanwhile, Dr. Hyman clearly states that his opinion is rendered based upon his medical expertise and judgement after thorough analysis of the case at hand.

It appears through these cases, that the WCJ’s and commissioners want doctors to be sure of their opinion on apportionment, based upon medical evidence and their expertise. As a practice point, allowing an AME/QME to issue a supplemental report post-deposition may be a good plan to ensure the opinion is solid, or the opposite if you are trying to discredit their opinion and remove them as a QME.

 Have any questions? Want to learn more? Visit Michelle’s page and reach out!