RE: GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – WE REVIST SUBSTANTIAL EVIDENCE OR, UPON FURTHER REVIEW, MAYBE NOT THE MOST GERMANE BEACH DISCUSSION?
FROM MY BAR AT HOME:
The sun is shining, birds are chirping and flowers are blooming! It must be late winter in Southern California. With spring just around the corner, my friends and I decided to take our zoom happy hour out of the virtual world and into the real one for a masked, socially-distant cocktail party at the beach.
It was the first time we had seen each other in months. My friend and applicant’s attorney adversary but all around great gal, Holly Hustler, was there with a sixer of mango flavored White Claw and considerably longer hair than her normal uptight bob with straight, severe bangs. I didn’t want my precious Kegel, Tobin & Truce branded cocktail shaker1 to get sandy so I traded in my usual Manhattan for a can of Prosecco. Our friend Beth Emhoff also showed up and we found a sweet spot on the sand to catch up while spread out on our beach blankets.
After some pleasantries and necessary updates about our families and our current favorite masking techniques (both beauty and protective), we got to talking shop. Holly was looking forward to an expedited hearing she had the following week for her client, Annette, on the issue of entitlement to temporary total disability (TTD) benefits.
Apparently, the applicant, a server at a beachside establishment known for its groovy live music (pre-pandemic), was busy clearing tables when a dance party broke out in response to that night’s band’s rendition of the Dick Dale and His Del-Tones classic, “Swingin’ and A-Surfin’.” Annette twisted her knee when she was knocked down by a patron who was gyrating too enthusiastically.
The claim was accepted. When Annette was deemed temporarily totally disabled and unable to perform her job by her treating doctor, temporary disability payments began. Thereafter, she was seen by panel Qualified Medical Evaluator (QME) Dr. Robert O. Sutwell, who agreed with the treating physician regarding her disability status.
A few months after the panel QME appointment, the applicant underwent arthroscopic surgery for the knee and attended the post-surgical therapy. Once her therapy was complete she did not follow up with her treating doctor. Without a recent treating medical report to support the ongoing temporary disability status, the insurance carrier stopped paying the benefit, but with the pandemic now in full swing, Annette unfortunately didn’t have a job to go back to.
When they stopped paying benefits, the carrier pointed to Workers’ Compensation Appeals Board Rules of Practice and Procedure (Rules), Chapter 4.5, Subchapter 1, Article 5, Section 9785 Reporting Duties of the Primary Treating Physician of the California Code of Regulations, specifically §(f)(8), quoting the following, “When continuing medical treatment is provided, a progress report shall be made no later than forty-five days from the last report of any type under this section …”
Since there was no report within the past 45 days to continue to support the TTD, the defendant asserted they did not have an ongoing obligation to pay.
Holly knew that without a primary treating physician’s report currently finding the applicant unable to work she faced a challenging hearing, but it was the kind of thrill she lives for. She wanted to convince the judge that the panel QME’s opinion that the applicant was temporarily totally disabled would be sufficient for an order awarding benefits until the panel doctor issued a final report finding the applicant to be at maximum medical improvement. After all, while primary treating physicians are required to issue regular reports, panel QME’s are not. In the absence of a treating report, the panel QME’s opinion should be relied upon.
I appreciated Holly’s confidence, but also felt a little rush when I knew I could poke a hole in her scheme. I told her when I got home I would send her a case that would take the wind out of her sails – Dennis Avila v. State of California Department of Corrections and Rehabilitation (ADJ11242837) published on January 15, 2021.2
I explained to Holly that Avila was a panel decision in which the case was returned to the trial level for development of the record on the issue of TTD based on a lack of current substantial medical evidence to support a finding of TTD. There was a panel QME report which found that the applicant was not yet at maximum medical improvement (MMI), but like in Holly’s case the report was not current.
The applicant in Avila sustained an injury on a cumulative trauma basis from October 30, 1999 through June 5, 2017, to a host of orthopedic parts of body and other body systems. The claim was admitted as to the cervical and lumbar spine areas.
The applicant was examined by the panel QME on September 5, 2018, and re-evaluated by the same physician again on October 30, 2019. The doctor found the applicant to be temporarily totally disabled at the time of the subsequent examination.
In the meantime, the applicant continued to follow up for treatment with their primary treating physician (PTP). On May 26, 2020, the PTP issued a report finding that the applicant was nearing MMI status, but was not yet there. Then, the PTP issued a note on July 7, 2020, finding the applicant had reached MMI. Later that very same day though, once the PTP realized that there was a panel QME appointment pending a few months later, they issued a revised report placing the applicant on TTD status through November 10, 2020.
The matter proceeded to expedited hearing on October 1, 2020. The trial resulted in an order to pay TTD benefits from July 7, 2020, the date of the PTP note, and continuing. The defendant then filed a timely Petition for Reconsideration arguing that the finding was not supported by the trial record.
On reconsideration the Appeals Board determined that neither the PTP reports nor the note were substantial medical evidence. The medical report did not include any discussion or explanation for their opinions, and the revised report had no explanation for the change in disability status. As a result of these facts, the Appeals Board ruled that there wasn’t a medical report to serve as the basis for the award or order. They rescinded the order and returned the matter to the trial level.
Holly then asked, “What about the panel QME report which found that the applicant was still temporarily totally disabled?” I told her that it could not be used to support an order for TTD because it was too remote in time. I added that although the Appeals Board did not comment on the October 2019 report and whether it constituted substantial medical evidence, a medical report from this time is not “germane” to the applicant’s disability status a year later.
I told Holly that there was no chance that the panel QME report in her case from six months prior and before the knee surgery would be deemed substantial evidence, and her best approach would be to secure an order to develop the record. Holly accepted her fate replying, “Guess I’ll just try to squeeze the defendants for an advance against permanent disability benefits while we wait for the final panel QME report.”
As the sun went down metaphorically on Holly’s dream, we admired the physical sun setting and went back to swapping our favorite cocktail recipes and fantasizing about all of the trips we would take together in 2022.
ll characters at my home bar are fictional and the storyline is simply a product of my lively imagination.
In a previous George the Bartender edition from the fall of last year I went into detail about what constitutes substantial medical evidence, so it’s worth another read if you need a refresher.3 I said it then but I’ll say it again here – Being able to determine what facts make up an expert opinion and what does and does not constitute substantial medical evidence takes a skilled attorney, as you are working to see what an applicant reported to the physician, what reports and records were reviewed by the reporting physician in making their opinion/report and whether the reporting used reasonable medical probability in making their conclusions about the health of the applicant. Or in the case of Avila, if those facts are still germane.
While Avila lacks the designation “significant panel decision,” Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, always liked to remind me of one of his favorite portions of the Labor Code, subtitled “Specific Additional Evidence Allowed,” §5703(g) which states in relevant part as follows:
The appeals board may receive as evidence either at or subsequent to a hearing, and use as proof of any fact in dispute, the following matters, in addition to sworn testimony presented in open hearing: … (g) Excerpts from expert testimony received by the appeals board upon similar issues of scientific fact in other cases and the prior decisions of the appeals board upon similar issues. (emphasis added)
He would also draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
We’re still making our own doubles. May George guide my hand. Bottoms up, friends, and keep washing your hands.
1 A Kegel, Tobin & Truce cocktail shaker available upon request.
2 A copy of Avila can be obtained via email request.