Opinion
2d Civil No. B114628 (WCAB Nos. VEN 91695, 90883 Ventura County)
Filed May 20, 1998
Proceeding to review a decision of the Workers' Compensation Appeals Board. Annulled and remanded.
Finestone, Schumaker, Cocquyt Graham and David G. Schumaker for Petitioner.
John D. Moloney for Respondent Republic Indemnity Company of America.
No appearance for Respondent Concrete Form Constructors.
No appearance for Respondent Workers' Compensation Appeals Board.
A physician in a workers' compensation case submits a medical-legal report. Labor Code section 4628, subdivision (b) requires, among other things, that the physician performing the evaluation sign the report and disclose the name and qualifications of each person who performed services such as diagnostic studies "in connection with" the report. Failure to do so shall make the report inadmissible as evidence.
All further statutory references are to the Labor Code.
Section 4628, subdivision (b), effective September 30, 1992, states that, "The report shall disclose the date when and location where the evaluation was performed; that the physician or physicians signing the report actually performed the evaluation; whether the evaluation performed and the time spent performing such evaluation was in compliance with the guidelines established by the Industrial Medical Council or the administrative director pursuant to paragraph (5) of subdivision (j) of Section 139.2 and the name and qualifications of each person who performed any services in connection with the report, including diagnostic studies, other than its clerical preparation. If the report discloses that the evaluation performed or the time spent performing such evaluation was not in compliance with the guidelines established by the Industrial Medical Council, the report shall explain, in detail, any variance and the reason or reasons therefor."
Section 4628, subdivision (e) states: "Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report."
Here we hold that a physician complies with the statute if he or she declares in good faith, a belief that information concerning diagnostic studies prepared by others is true and correct. (§ 4628, subd. (j).)
The Workers' Compensation Appeals Board (WCAB) excluded from evidence a medical-legal report because the reporting physician did not correctly identify the name and qualifications of an independent person performing muscle testing results briefly referred to in the report but not relied upon by the physician in forming his opinion.
We annul the WCAB's decision and remand for further proceedings.
FACTS
Petitioner Gregory Wood, a carpenter, was employed for a short time by Concrete Form Constructors (Constructors). Wood allegedly injured his back on November 2, 1992, after lifting beams weighing 250 pounds. He had also sustained back injuries while working on similar jobs from 1978 to the injury on November 2. He received treatment for back injuries since 1990.
Constructors dismissed Wood and denied his later filed claims. Wood then worked a short time for Mid-Coast Builders.
Beginning in May of 1993, he sought medical treatment from various doctors. Wood eventually obtained a medical-legal report dated December 20, 1993, from Steven Nagelberg, M.D. Nagelberg concluded Wood was permanently restricted to no heavy work, apportioning 50 percent to the injury of November 2, 1992. He attributed the remaining disability to the cumulative injury from 1978 through November 2, 1992.
On page 5 of his report, Nagelberg stated that NIOSH muscle testing had been performed, but did not mention the test results as a reason for his opinion. Nor did Nagelberg identify or discuss the qualifications of the person who administered the test. A summary report of the test attached to Nagelberg's report identified the examiner with the initials "CL".
Nagelberg attempted to comply with sections 139.2, subdivision (j)(5), 139.3 and 4628. On the last page of his report he stated: "I declare under penalty of perjury that the information contained in this report and its attachments, if any, is true and correct to the best of my knowledge and belief, except as to information that I have indicated I received from others. As to that information, I declare under penalty of perjury that the information accurately describes the information provided to me and, except as noted herein, that I believe it to be true. [¶] By my signature on the report and this affidavit, I certify that this report represents the work product of myself and my staff in the manner described, and expresses exclusively my professional opinion, findings, and conclusions on the matters discussed in the report."
Section 139.2 provides for discipline of physicians who fail to comply with rules promulgated by the Industrial Medical Council and for violations of sections 139.3 or 4628.
Section 139.3 prohibits referrals to another medical facility for consideration. A physician may refer a patient if needed to a medical facility in which there is a beneficial or financial interest, but the interest must be disclosed in writing. (§ 139.3, subds. (a) (e).) Constructors does not allege a violation of this statute.
Section 4628, subdivisions (i) and (j) were added effective September 30, 1992. Section 4628, subdivision (i) states: "Any person billing for medical-legal evaluations, diagnostic procedures, or diagnostic services performed by persons other than those employed by the reporting physician or physicians, or a medical corporation owned by the reporting physician or physicians shall specify the amount paid or to be paid to those persons for the evaluations, procedures, or services. This subdivision shall not apply to any procedure or service defined or valued pursuant to Section 5307.1."
Section 4628, subdivision (j) provides: "The report shall contain a declaration by the physician signing the report, under penalty of perjury, stating: [¶] 'I declare under penalty of perjury that the information contained in this report and its attachments, if any, is true and correct to the best of my knowledge and belief, except as to information that I have indicated I received from others. As to that information, I declare under penalty of perjury that the information accurately describes the information provided to me and, except as noted herein, that I believe it to be true.' [¶] The foregoing declaration shall be dated and signed by the reporting physician and shall indicate the county wherein it was signed."
In response, Constructors obtained a medical-legal report from Peter Thaler, M.D., dated April 14, 1994. Thaler concluded Wood's back condition was non-industrial, being attributable to events subsequent to January or February 1993.
At trial, Wood testified that Nagelberg sent him to "another location" for muscle strength testing. The employer argued that Nagelberg's failure to provide the identity and qualifications of the person who administered the muscle testing violated section 4628, subdivision (b).
In response, Nagelberg wrote a supplemental report dated October 31, 1994, stating that the NIOSH muscle testing was performed by an independent medical facility, which submitted its own billing and report, and he had no knowledge of the person conducting the test. He also opined that he should not be required to obtain this information, "although the outside testing service may so be required."
In subsequent correspondence to the WCAB, Nagelberg wrote that "the name of the technician is not relevant or disclosed to my office." Nagelberg suggested that if counsel contacted the outside laboratory, "[it] would provide him with the name of the technician who performed the actual tests, although I am not sure the relevancy of this except to knit-pick."
The Workers' Compensation Judge (WCJ) found Wood credible, but stated that the identity and qualifications of the NIOSH tester was necessary for Nagelberg's report to be admissible. The WCJ vacated the order of submission to give the parties an opportunity to provide supplemental reports. The employer petitioned for removal to the WCAB seeking an order directing the WCJ to issue a finding of no injury arising out of Wood's employment. The WCAB declined and concurred with the WCJ that the record should be augmented.
Wood's attorney then wrote to Nagelberg and informed him that the WCJ requested the identity and credentials of the person who administered the muscle testing, noting that the "examiner code" showed the initials "CL". Nagelberg responded by letter of December 27, 1995, and stated that the person who supervised and administered the testing was Kareen Ahmed of Tri-State Medical Imaging.
On April 23, 1996, the WCJ awarded Wood 24 1/2 percent permanent disability for the injury of November 2, 1992, and the period of 1978 through November 2, 1992. The WCJ found there was no fraud as alleged by the employer because Wood was credible and worked in pain. The record showed that the back injury requiring surgery was sustained due to the heaviest lifting, which occurred at Constructors.
The employer petitioned for reconsideration challenging among other things, Nagelberg's compliance with section 4628, subdivision (b) by naming Ahmed as tester without providing his qualifications.
The WCJ reasoned Nagelberg's conclusions were not based on the short two-sentence paragraph on muscle testing, which if discounted, left the decision based on the merits. In addition, the WCJ noted medical evaluators often refer to X-rays and MRIs, without disclosing the identity and qualifications of persons performing the tests.
The WCAB rescinded the decision and granted reconsideration, interpreting section 4628, subdivision (b) as requiring Nagelberg to provide qualifications of the person performing the muscle testing. The WCAB also suggested that the WCJ issue a notice of intention to strike Nagelberg's report if the required information was not given.
The WCJ then served a notice of intention to strike Nagelberg's report unless he provided the name and qualifications of the person performing muscle testing referenced in his report.
On July 25, 1996, Nagelberg wrote to the WCAB that he met with Ahmed prior to referring him patients, and that Ahmed's company, Tri-State Medical Imaging, was an independent contractor and not an employee of the doctor's group. Nagelberg said Ahmed told him he was extensively trained by the Faro Corporation, which developed and manufactured the muscle testing equipment. Nagelberg said he also observed Ahmed test patients. Under penalty of perjury Nagelberg stated he believed Ahmed was qualified to administer those tests.
In December of 1996, Nagelberg was deposed. He admitted he did not physically see who performed the muscle testing on Wood but believed that Ahmed tested patients at that facility. Nagelberg believed the examiner code initials "CL" were those of a bookkeeper who was present when the tests were performed. Tri-State Medical Imaging had been located across the street from Nagelberg's office but at some time before his deposition it moved its location somewhere unknown to Nagelberg.
The employer then filed a motion to strike Nagelberg's report because he incorrectly surmised Ahmed tested Wood. The employer pointed out that in another case, Nagelberg used Tri-State Medical Imaging and identified the examiner as Norma Inclan. The employer added that the initials "CL" referred to Carmen Luna, another Tri-State Medical Imaging examiner.
The WCJ found no fraud was involved and that Wood was credible and had injured himself lifting the heaviest weights at Constructors. Nevertheless, the WCJ denied compensation and concluded Nagelberg did not comply with section 4628, subdivision (b) because he made an "educated guess" that Ahmed performed the muscle tests.
Wood petitioned for reconsideration, arguing Nagelberg complied with section 4628 In the report and recommendation on the reconsideration petition, the WCJ reasoned that Nagelberg had numerous opportunities to supply the requested information, but only gave an educated guess. It disallowed admission of his report pursuant to section 4628, subdivision (e). The only medical evidence remaining was Dr. Thaler's report, which concluded that Wood's back injury had a non-industrial causation.
The WCAB adopted the WCJ's reasoning and denied reconsideration.
DISCUSSION
The Legislature enacted section 4628 as part of the recent workers' compensation anti-fraud legislation, specifically aimed at preventing "ghostwriting" of medical-legal reports, thereby insuring reliability. ( Ameri-Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1282, and Stress Care, Inc. v. Workers' Comp. Appeals Bd. (1994) 26 Cal.App.4th 909, 916.)
In construing the statute, the subdivisions should be read together. ( Ameri-Medical Corp. v. Workers' Comp. Appeals Bd., supra, 42 Cal.App.4th 1260, 1283.) The statute recognizes that a reporting physician has an identity and responsibility that is separate and apart from an outside independent contractor whose diagnostic results are used in a medical-legal report. For example, subdivision (i) provides that persons not in the employ of the reporting physician who perform diagnostic procedures have the responsibility for billing for those services, not the reporting physician. Subdivision (j) also distinguishes between the reporting physician and others. As to information received from others, a reporting physician may declare in his report under penalty of perjury, that he believes the information to be true.
Nagelberg's letter to the WCAB dated July 25, 1996, complies with the provisions of section 4628, subdivision (j). Nagelberg stated, under penalty of perjury, that he believed the muscle testing measurements were accurate and that Ahmed was qualified to administer the tests. That it was discovered later that someone else (Ms. Carmen Luna) at Ahmed's facility had administered the tests, should not invalidate Nagelberg's report. His belief concerning who conducted the tests was made in good faith and under penalty of perjury.
Moreover, the WCJ expressly found that Wood suffered an industrial injury, there being no fraud in Wood's claim. Particularly significant was the WCJ's observation that Nagelberg's conclusions were not even based on the NIOSH muscle tests. ["If one struck the reference to the muscle strength test from Dr. Nagelberg's report[,] such omission would not affect the weight, or conclusions of the report."]. Under the circumstances, the reliability of Nagelberg's medical report was not compromised. Ahmed and Tri-State Medical Imaging were completely independent from Nagelberg. To deny Wood his benefits neither advances the goals of the statute nor serves the ends of justice.
It is true that the information requested here could have been obtained by a simple phone call or letter from Nagelberg or Wood's attorney to the NIOSH testing facility. That would have been the reasonable and mature way to resolve the issue, rather than through this costly and unnecessary appeal. It is our hope that in future cases we do not see physicians acting with the obstinacy and lack of cooperation that occurred here. Our energies can thus be directed to more substantive issues.
The decision of the WCAB is annulled and remanded for further proceedings consistent with this opinion.
CERTIFIED FOR PUBLICATION.
_______________________________ GILBERT, Acting P.J.
I concur:
_______________________________ COFFEE, J.
I respectfully dissent.
Labor Code section 4628, subdivision (b), requires that the physician signing the medical-legal report disclose the name and qualifications of each person who performed services in connection with the report, including diagnostic studies. It was enacted "to ensure the reliability of the medical evaluation by controlling the quality of the medical-legal report. The statute enumerates the responsibilities of the physician signing the report." ( Ameri-Medical Corp. v. Workers' Comp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1265.)
The majority opinion holds that Doctor Steven Nagelberg complied with section 4628 Doctor Nagelberg was asked on numerous occasions to disclose the name and qualifications of the person who performed the muscle tests at Tri-State Medical Imaging, Inc. The test facility was located across the street from the doctor's office. The doctor, at his deposition, stated that Kareen Ahmed may have performed the muscle tests. The muscle test report, however, indicated that "CL" was the examiner. CL was a bookkeeper who worked at Tri-State Medical Imaging, Inc.
It was later discovered that Carmen Luna performed the tests. Doctor Nagelberg did not supplement his report to disclose Luna's qualifications.
The WCAB properly found that the medical-legal report was incomplete and inadmissible as evidence. Section 4628, subdivision (e), states: "Failure to comply with the requirements of this section shall make the report inadmissible as evidence and shall eliminate any liability for payment of any medical-legal expense incurred in connection with the report."
Reasonable minds may differ about the wisdom of an exclusionary rule that may prejudice an injured worker. We do not, however, review the wisdom of the statute. ( Wells Fargo Bank v. Superior Court (1991) 53 Cal.3d 1082, 1099.) Doctor Nagelberg was provided ample opportunity to disclose the qualifications of the person conducting the muscle tests. The majority opinion sidesteps Labor Code section 4628, subdivisions (b) and (e), based on the theory that the exclusionary rule does not apply if the physician signing the report acted in good faith.
This "good faith" rule is a pragmatic test which may foster the overall goal of protecting injured workers. However, "'[w]here the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. [Citation.]' [Citation.]" ( Stress Care, Inc. v. Workers' Comp. Appeals Bd. (1994) 26 Cal.App.4th 909, 916.) The Legislature is presumptively aware of how to draft a statute utilizing the majority opinion's theory. It did not do so and the exclusionary rule enacted seems unambiguous as a matter of law. We should give it the effect that is expressed in its language. ( Unzueta v. Ocean View School Dist. (1992) 6 Cal.App.4th 1689, 1697, 1700.) To do otherwise circumvents the legislative goal of quality control in the preparation of the medical-legal report and allows for the "ghostwriting" of diagnostic reports by outside independent contractors.
I would affirm the decision of the WCAB.
CERTIFIED FOR PUBLICATION
____________________________ YEGAN, J.