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California: The Range of Evidence Is Alive and Well

June 16, 2014 (10 min read)

One of the most challenging issues for a Workers’ Compensation Judge (WCJ) is to decide how to weigh medical evidence for the most accurate determination. Which physician’s report is the more credible? Which diagnostic tool is the more accurate? Of the voluminous hospital records, which ones might be relevant to the injury at issue? What medical evidence rises to the level of substantial evidence? What constitutes “reasonable medical probability”? How should that standard be applied? And one of the most pressing questions of all; when is it appropriate to use the “range of evidence” as a basis to support a finding?

I. Judicial History of “Range of Evidence”

Back in the 1970s, the California Supreme Court tackled a number of cases dealing with the issue of substantial evidence with regard to medical reports. These decisions set the stage for how these issues were to be defined for the rest of the century and beyond. In some cases, the courts determined that an opinion could be based on the “range of medical evidence.” In other cases, the courts held that, once a prevailing doctor’s opinion was selected, the court could not isolate certain segments from that doctor’s opinion to match the result selected by the trier of fact.

Over the years, courts and WCJs have toggled between the two concepts. Many judges have successfully applied the two in conjunction with one another. Others have relied solely on “range of evidence.” Others have rejected the notion of “range of evidence” in its entirety. This led many people in the workers’ compensation community to wonder if “range of evidence” was still a viable option for judges to use or was it, in fact, in direct conflict with the alternative method of analysis. However, a string of recent panel decisions seems to indicate that “range of evidence” is very much alive and well.

Publisher’s Note: All citations below link to Lexis Advance.

II. Supreme Court Rejects Method in LeVesque

The Supreme Court in LeVesque v. WCAB (1970) 1 Cal. 3d 627, 35 Cal. Comp. Cases 16, appeared to reject the “range of evidence” concept. In that case, the injured worker was employed as a metal cutter for a machine shop, where he was often required to lift between 200 to 250 pounds. In three separate accidents, he hurt both knees and his elbow and was put on temporary total disability (TTD). He was released to return to work, but he was precluded from lifting more than 25 pounds. Therefore, he was not able to return to his old job.

When the matter went to trial, the referee (predecessor to the WCJs) held that the injured worker was no longer TTD. Based on the “range of evidence,” the referee stated, “The general tenor of the medical reports, especially when considered in the light of other factors, suggests that the doctor’s cautions were more in the nature of prophylactic advice rather than rigid restrictions.” The referee held that the injured worker was not TTD.

When the case reached the Supreme Court, the justices struggled with the referee’s findings, especially since he did not identify “other factors” in the medical reports. They noted that he seemed to be inserting his own opinion in place of the medical practitioners’. The Court stated, “No substantial evidence can support the WCJ’s rejection of the uncontradicted medical opinion in the record or his characterization of the ‘doctor’s cautions’ as ‘more in the nature of prophylactic advice rather than rigid restrictions.’”

The Court rejected the WCJ’s use of the “range of evidence” standard and concluded, “In essence, the referee’s report confronts petitioner with the grisly choice of obeying the medical advice of his treating physician or risking further injury by following the medical views of the referee.”

III. Supreme Court Approves Method in Brenner

However, the following year, that same Supreme Court approved the use of the “range of evidence” method in the case of US Auto Stores v. WCAB (Brenner) (1971) 4 Cal. 3d 469, 36 Cal. Comp. Cases 173, and stated, “The decision is supported by substantial evidence if the degree of disability found by the referee is within the range of evidence in the record. It is not necessary that there be evidence of the exact degree of disability.”

It would seem, then, that the use of the “range of evidence” method may be condoned in cases in which it is reliable and a more legally accurate tool of analysis than relying on a single doctor’s opinion.

IV. WCAB Approves Method in Recent Panel Decisions

Recently, many thought this standard may have gone by the wayside, but WCJs have crafted their own version of “range of evidence” over the years and have been affirmed by the WCAB.

A. Range of Evidence Used in Severe Burn Case

In Bonilla v. Cameo Cleaners, 2013 Cal. Wrk. Comp. P.D. LEXIS 594 (Appeals Board noteworthy panel decision), the WCAB cited Brenner, supra, as authority to affirm the WCJ’s use of the “range of evidence.” In this case, Hilda Bonilla had received a third degree burn on her hand while operating an ironing press in a dry cleaning facility. She spent 11 days in the hospital after skin graft surgery to repair the damage.

Ms. Bonilla’s primary treating physician (PTP) stated that her impairment should be rated at 15% due to “scarring” and made a general reference to “Chapter 8, pages 173-190” of the AMA Guides in support of his conclusion.

The Panel Qualified Medical Evaluator (PQME) in the case determined that Ms. Bonilla’s impairment rated at 10%. He specifically referred to Table 8-2 of the AMA Guides entitled “Criteria for Rating Permanent Impairment Due to Skin Disorders.” He explained that Ms. Bonilla fell within Class 2 of this table, which allowed for an impairment range between 10% and 24%. He placed her at the bottom of this range, at 10%, “based on a healed scar, sensitivity to light, sensitivity of the hand, and difficulty performing activities.”

The WCJ followed the PTP’s impairment of 15%. The defense challenged this decision, claiming that the PTP’s report did not constitute substantial evidence, since he did not adequately explain the rationale behind his conclusion, whereas the PQME did explain his rationale. The WCAB reasoned that the rationale behind the two medical opinions was basically the same. They simply differed on degree of disability. The WCAB denied the defendant’s Petition for Reconsideration, stating, “Furthermore, when the WCJ is faced with divergent views as to the extent of disability, a finding of disability may be made within the range of medical evidence.”

B. Range of Evidence Used in Orthopedic Case

A similar reasoning was applied in NBC Universal v. WCAB (Moussa aka Andramos), (2014) 79 Cal. Comp. Cases 191 (writ denied), in which the injured worker suffered an industrial injury to her bilateral knees and her spine. Both the PTP and the PQME issued reports on the level of permanent disability and apportionment.

Essentially, the PTP rated the spine at 12% PD with 20% apportionment to non-industrial factors. He rated the left knee at 8% and the right knee at 16% with no apportionment to non-industrial factors.

The PQME rated both the lumbar and the thoracic spine, the former at 29% and the latter at 8%. He rated the left knee at 10% and the right knee at 12%. He apportioned 50% of the disability to non-industrial factors, except for the thoracic spine, which had no apportionment to non-industrial factors.

The WCJ considered the entire medical record but found errors in both reports. He realized he had a choice. He could develop the record further at great expense and delay the trial, or he could issue a decision based on the “range of evidence.” He chose the latter and arrived at 71% permanent disability, using the PTP’s rating on knees and the PQME’s rating on the spine. He used the PTP’s apportionment determination, since he determined that it met the “reasonable medical probability” standard of Escobedo v. Marshalls (2005) 70 Cal. Comp. Cases 604 (Appeals Board en banc opinion), which the PQME did not meet.

The WCAB affirmed the WCJ’s use of the “range of evidence,” and the defendant’s Petition for Writ was denied.

C. Range of Evidence Expanded to Include Vocational Expert Reports

In Burton v. Coleman Burke dba Pride & Joy, 2013 Cal. Wrk. Comp. P.D. LEXIS 535 (Appeals Board noteworthy panel decision), the WCJ extended the range of evidence standard to include not just medical reports, but vocational expert reports as well. Michael Burton was once a well-known musician with the rock group Pride and Joy until he quit due to a severe work-related hearing impairment, including tinnitus. The hearing and psych impairments offered by the evaluating physicians rated at a combined level of 53% permanent disability.

The WCJ explained that Mr. Burton had adequately met his burden of rebutting this strict rating, given the severity of his disability and his lack of employment opportunities, as discussed in the vocational expert’s report.

In his report, the vocational expert deemed Mr. Burton to be 100% disabled. He explained that, according to the Department of Labor occupational data, “less than 10% of occupations are performed in acoustic environments of less than 60 decibels . . . .” The vocational expert used this information, along with other data to conclude that Mr. Burton was totally permanently disabled.

However, the WCJ was not convinced that Mr. Burton was 100% permanently disabled, for two major reasons.

First, the AME in otolaryngology, who evaluated Mr. Burton’s hearing loss, had stated that, although Mr. Burton had a severe hearing impairment, it might be possible for him “to work in areas where sound is consistently below 60 decibels.”

Second, the vocational expert “has not given sufficient consideration to part time employment opportunities . . . .”

Therefore, based on the range of evidence, the WCJ concluded Mr. Burton’s permanent disability to be 85%, based on the reports of the two evaluating physicians and the vocational expert.

The WCAB denied the defendant’s Petition for Reconsideration and affirmed the WCJ’s determination of 85% permanent disability, based on the “range of evidence.”

V. Basis for Rejecting Range of Evidence Method

Parties should be mindful that not all WCJs are comfortable using the “range of evidence.” In addition, the WCAB does not always approve of the use of this “range of evidence” analysis. In fact, this analysis was rejected by the WCAB in Daniels v. WCAB (2011) 76 Cal. Comp. Cases 1092 (writ denied).

In Daniels, the injured worker claimed both an orthopedic and a psychiatric injury. Each party offered its own QME on the psych issue, with the defense QME finding no psych impairment after evaluating the injured worker, using the eight work functions mandated by the relevant rating schedule. The WCJ followed the applicant’s psych QME, who found 10% impairment to the psyche.

The WCAB overturned the WCJ’s decision and explained as follows:

It was not sufficient for the WCJ “to blindly accept a medical opinion that lacks a solid underlying basis” without carefully judging the report’s weight and credibility and determining whether the evidence had “some degree of probative force.” Here, the WCAB found that Dr. Friedman’s opinions did not “rise to the level of substantial medical evidence on the issue of permanent disability,” thereby making it incorrect to use his reporting on the range of evidence.

VI. Conclusion

As discussed above, “range of evidence” does seem to be a viable tool for WCJs to use when evaluating medical and even vocational evidence. However, it is incumbent on parties to first bullet proof their respective reports before offering them into evidence, so that the WCJ’s method of analysis will not be rejected on appeal. Failure to do so may result in the party with the affirmative burden on the issue losing his or her case, because continuing a trial to allow development of the record is not a favored method of procedure.

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