What Judges Look For In Medical Opinions In Comp Cases
Your opinion is needed for your patient’s work injury claim. It seems obvious to you that your patient needed treatment, and possibly was disabled, because he/she was hurt at work. Yet you’ve heard Workers’ Compensation judges do not always accept treating doctors’ opinions. What are judges in comp claims looking for anyway?
Your opinion as to the medical causation of your patient’s injury does not need to be absolutely certain. All the judge needs is medical “probability” with regard to causation.
If your patient tells you the injury occurred at work, you may want to include in your chart notes your opinion as to causation, based on the history you obtain from your patient. (You do not need to decide whether the history is true, the judge does that.) If you state in your chart notes that it is medically probable your patient’s work activity caused the injury or condition you are treating, you may save your patient a lot of trouble and save yourself a lot of hassles with lawyers!
Find out from your patient exactly what she/he did at work. This will enable you to explain exactly why you think this work incident/activity caused the injury/condition you are treating.
Ask your patient if he/she engages in any other activities or has any prior injury(ies) or medical conditions which may have contributed to the injury or condition you are treating. If so, take these specifically into account and explain why you believe the work incident/activity was a greater causal factor in your patient’s disability and/or need for treatment than all other contributing factors combined, if that – with medical probability — is your opinion.
The first step, then, is to get a detailed history. Judges reject medical opinions if they are not based on complete and accurate information. Find out if your patient has been sent for an “independent medical examination” (“IME”) by other doctors. If so, get copies of their reports. Be sure your opinion takes into account all the information they have, especially if they disagree with your conclusions.
PREEXISTING CONDITIONS & MAJOR CAUSE
Likewise, if the work injury or condition involves a body part which has been injured before or has required medical attention before, be sure to take these into account in stating your opinion on causation. Your patient’s attorney can obtain medical records of prior treatment for your review.
If the claimed injury/condition combined with a preexisting medical condition or injury, then your causation opinion not only must state that the work incident/activity was the major (51% or more) cause of the injury/condition being treated, but also must identify all such other potential causes and state approximately the percentage of cause that each contributed.
If you believe the work incident/activity to be the major cause, you must at least acknowledge all other potential causes and state that all together they caused 49% or less of your patient’s disability and/or need for treatment.
Always explain your opinion as clearly as you can, providing a complete and accurate factual basis so anyone may follow your reasoning.
While medical certainty is not required, your opinion must say more than that your patient’s condition or injury is “consistent with” his/her work activity. It must also say more than “if not for” (“but for”) the work incident/activity, the patient would not have the injury/condition. Such opinions are regarded as conclusary, legally insufficient and not well-reasoned.
IS YOUR OPINION PERSUASIVE?
In Workers’ Compensation claims, the opinion of the treating physician is given deference only if there are no persuasive reasons to do otherwise. So, if the judge finds another medical opinion more persuasive than yours on an issue calling for expert medical opinion, the judge may reject your opinion — even though you have the most intimate knowledge of your patient’s condition as his/her attending physician!< What makes an opinion persuasive? The Workers’ Compensation Board, which reviews all administrative appeals of comp claims, says: "We evaluate three basic factors when assessing the persuasiveness of medical opinions: the source of the opinion, its factual basis and its logical force. … The source of the opinion includes the expertise and objectivity of the one giving it. The factual basis of the opinion includes the completeness and the correctness of the information upon which it is based. The logical force involves the depth, clarity and cogency of analysis.” Barbara J. Brown, 42 Van Natta 779, 780 (1990)(emphasis added)
Where medical experts have differing opinions, “… the causation issue must be resolved with expert medical opinion that is both well-reasoned and based on an accurate and complete history. …” (citations to Oregon Supreme Court and Court of Appeals omitted) Karin R. McKinney, 51 Van Natta 1322 (1999)
Similar standards apply to evaluating medical opinions on findings of permanent impairment, where your opinion may be compared to that of a medical arbiter:
“Permanent impairment is established by a preponderance of the medical evidence, … [which] means ‘the more probative and more reliable medical opinion based upon the most accurate history, on the most objective principles and expressed with clear and concise reasoning.’ …” (citations omitted) Robert A. Wilson, 50 Van Natta 1061 (1998)
What if you change your mind? If the record shows that you changed your opinion, be sure that you also explain very clearly your reasons. Medical opinions providing a reasonable explanation for a change of opinion are persuasive, whereas failure to explain a change of medical opinion will result in the rejection of your opinion and cause your patient to lose his/her claim for Workers’ Compensation benefits.
CONSIDERING YOUR PATIENT
Finally, be very clear in your chart notes and with your patient if you do not think your patient’s injury/condition is work-related. Be sure your patient understands your position. This will help avoid frustration, wasted time (yours, attorneys’, reviewers’) and potential ill-will (your patient’s) if your patient appeals based on his/her belief that you support his/her position, only to get the medical records and discover otherwise.
Please bear in mind the economic reality of denied work injury claims: unlike the insurance companies opposing claims, your patient is not in a position to pay for lengthy medical reports with exhaustive analyses. Including in your chart notes a well-reasoned opinion based on a complete and accurate history goes a long way in helping your patient and making best use of your time.
This article was prepared by Robert F. Webber.