State: Calif.
Substantial Evidence of Causation Apportionment - 2: [2005-09-11]
by Pamela W. Foust
What is substantial evidence?
California Evidence Code section 140 defines the term, evidence, as "testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." The phrase, substantial evidence, does not appear in the Evidence Code but definitions can be found in the case law. Probably the most widely accepted definition of substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion.
Of course, there is a lot of subjectivity in this definition because reasonable people can differ and what may convince one person may not be persuasive to another. Notwithstanding these considerations, substantial evidence is simply evidence that is believable. At the extreme ends of the spectrum, the concept will be easy to apply. If any reasonable person could read a medical report and find the doctor's conclusion to be persuasive, that's substantial evidence, assuming the report is based on accurate facts. On the other hand, if the doctor's opinion would insult the intelligence of any reasonable person or elicit the reaction that it could only happen this way on a cold day in hell, the report is not substantial evidence.
In Escobedo, the Board listed certain requirements that a medical opinion must fulfill in order for an apportionment determination to be based on substantial evidence:
* it must be framed in terms of reasonable medical probability
* it must not be speculative
* it must be based on pertinent facts
* it must be based on an adequate examination and history, and
* it must set forth reasoning in support of its conclusions.
The Board also made it clear that it is not good enough to just address the nonindustrially caused portion of the disability and assume that the balance must be industrial. It must be stated specifically why the doctor believes a given percentage of the disability was the direct result of the industrial injury and why a given percentage was caused by other factors.
These criteria are consistent with from the topics to be addressed in medical-legal reports listed in Title 8, California Code of Regulations, section 10606, although the Escobedo criteria are more general and section 10606 is more specific. Each of these requirements will be analyzed to see what they really mean.
1. The opinion must be framed in terms of reasonable medical probability
The problem with requirements such as this one is that they end up being the subject of "boilerplate" that is routinely inserted into every report as a matter of course, whether or not the statement is true. It will be easy for the physician to meet this requirement.
2. The opinion must not be speculative
This requirement must be interpreted to mean that the opinion must not be significantly speculative because every apportionment determination is going to involve a certain degree of speculation unless the disability is clearly all industrial or clearly all nonindustrial. Thus, there will always be an element of subjectivity in determining whether the doctor engaged in speculation. Physicians should expect to be deposed and asked such questions as, "If 50 percent of the disability was caused by nonindustrial factors, why not 60 percent or 40 percent?"
Claims that an apportionment determination is speculative can be minimized by assigning the lowest percentage to the nonindustrial component that can be supported by the facts. That way, when asked why a 50 percent apportionment couldn't just as well be a 40, the doctor can respond that while it might be 60 percent, it couldn't be 40 percent because the applicant was given the greatest possible benefit of the doubt. On the other hand, if the doctor has no reason for selecting the percentages in his report over any other two numbers that might add up to 100, the opinion is clearly speculative.
3. The opinion must be based on pertinent facts.
This means the doctor must be able to isolate all of the relevant information that suggests the existence of both industrial and nonindustrial causes and that he must be able to use those facts to form his opinion. In Escobedo, the treating physician based his opinion on one fact alone: that Ms. Escobedo denied prior symptoms or disability. This was simply not good enough. There were many other pertinent facts that should have been taken into consideration no matter what the doctor might have concluded in the final analysis. In contrast, the QME also considered the fact that she denied prior disability or symptoms, but then he went on to examine other pertinent facts such as the trivial nature of the injury, the substantial disability, and the rapid onset of the pain in the noninjured knee, facts that the treating physician neglected to consider and address.
4. The opinion must be based on an adequate examination and history.
The physician will not be able to identify the pertinent facts without making an inquiry into the circumstances of the injury and the injured worker's physical condition, both before and after the injury. This can only be accomplished by taking a comprehensive history from the applicant, performing a thorough physical examination, obtaining the necessary diagnostic testing, and reviewing the content of relevant medical records.
5. The opinion must set forth reasoning in support of its conclusions.
Determining medical causation issues requires a combination of medical judgment and scientific analysis. The physician must analyze all of the pertinent facts and reach a conclusion that is as much a function of experience and insight as it is based on medical knowledge. Then, however, the doctor must be able to translate his thought processes into a written explanation that a person with no formal medical training will be able to understand. It will not be good enough for the physician to simply remind the reader that he is an expert who knows what he's talking about and therefore his opinion should be taken on faith.
In appellate opinions interpreting the former apportionment statutes, the courts rejected medical opinions that were based on the doctor's belief that the apportionment determination was "fair" or "reasonable" On the other hand, there may be cases in which it would be impossible to assign percentages of causation without resort to speculation. Since the statute essentially provides that the physician must make an apportionment determination in order to validate the opinion on permanent disability, the only possible reasoning in support of a speculative conclusion may be that the doctor was complying with the law.
What is a direct result of an industrial injury?
In its opinion in Escobedo, the Appeals Board specifically stated that Labor Code section 4663 not only requires substantial evidence of the nonindustrial component of the apportionment determination, but also substantial evidence of the industrial portion. These two factors are described in new Labor Code section 4663 as follows:
"A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors both before and subsequent to the industrial injury, including prior industrial injuries"
Logically, a direct result would be the effect of a direct cause which in turn, is a synonym for proximate cause. It is a statutory condition of compensation that an injury be "proximately caused by the employment, either with or without negligence." In workers' compensation law, the term proximate cause, as it relates to causation of the injury rather than causation of the disability, has generally been defined as a substantial cause without which the injury would not have occurred.
If an injured worker tears a ligament in his knee while performing his job duties, the disability resulting from the torn ligament is clearly a direct result of the industrial injury. However, it is unclear how the term direct result, as it is used in the statute, might impact on compensable consequence injuries. The Board obviously found the disability arising out of the compensatory injury in Escobedo to have been "caused by the direct result of [the] injury." However, what if Ms. Escobedo had sustained additional permanent disability to her knees in an automobile accident on her way to therapy? Would the disability arising out of the auto accident still be considered the "direct result" of the industrial injury?
Liability for compensable consequence injuries, in general, was unchanged by SB 899 because Labor Code section 4663 governs apportionment of permanent disability; not apportionment of injury. The Appeals Board made this clear in its opinion in Escobedo. Therefore, it is difficult to understand how an injured worker's temporary disability and need for medical treatment caused by a secondary injury could be industrially related, but not his permanent disability because it was not "the direct result of injury arising out of and occurring in the course of employment." However, a definitive answer will have to await interpretation by the Appeals Board and the appellate courts.
Is the applicant's history credible?
When a new patient comes to a doctor with a medical problem, there is generally little incentive for the patient to misrepresent his symptoms or past history because he wants the doctor to diagnose his condition and hopefully provide him with a cure. When an injured worker comes to a doctor for the purpose of obtaining evidence in connection with litigation of an injury claim, there is often an incentive to be less than candid. The doctor cannot simply accept every story at face value. Yet doctors are often hesitant to question an applicant's history or complaints even where it is highly unlikely that the reported information is accurate.
If the degree of degenerative arthritis shown on x-rays taken on the day of the injury is such that the individual almost surely must have had some physical limitations if not subjective complaints, the doctor should say so. If the physical findings clearly do not support the degree of pain and physical limitations that the applicant reports after the condition has become permanent and stationary, the doctor should say so. Where litigation is involved, misrepresentations concerning past or present physical condition are often easy to rationalize. In fact, an individual who admits to prior problems where there are no medical records or other means of proving it would be considered by many to be a fool.
In these situations, it is up to the physician to try to separate the wheat from the chaff. While injured workers should be given the benefit of the doubt, this rule does not apply where there is no reasonable room for doubt. A sympathetic physician should avoid the temptation to make workers' compensation the Band-Aid for all the ills of society by helping an injured worker to reap a windfall or to retire with a higher pension.
The next part reviews, "Applying Escobedo to other types of nonindustrial apportionment "
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