Oklahoma: Chiropractors May Not Offer Expert Testimony as to Psychological Overlay

The Supreme Court of Oklahoma recently held that a chiropractor is not qualified as an expert in diagnosing psychological illnesses such as depression. Accordingly, the report of a chiropractor as an expert in the field of psychology, as to a claimant’s psychological overlay, is inadmissible and error [Joe Brown Co., Inc. v. Melton, 2013 OK 66, 2013 Okla. LEXIS 79 (July 2, 2013)].  

Melton, a truck driver, sustained an industrial injury when a heavy wash rack fell on him as he washed out his truck in preparation for carrying a load. He was awarded eleven weeks of TTD and was also granted PPD both for his low back and neck injuries and for psychological overlay associated with depression. The employer appealed to a three-judge panel, which vacated some parts of the award, sustained others, and found in relevant part an 18 percent PPD to the “whole man” as a result of “psychological overlay.” The panel parenthetically noted Melton suffered “depression,” and with the additional parenthetical “claimant’s credible testimony – Dr. McClure’s report [the chiropractor]- severe and extreme depression – developed from chronic pain syndrome….”

Upon further review, the Court of Civil Appeal (COCA) affirmed in relevant part the portion of the PPD award that was based upon the psychological overlay. The COCA cited its own decision in Adecco, Inc.v. Dollar, 2011 OK CIV APP 43, 254 P.3d 729, wherein the same chiropractor, Dr. McClure, had testified to another claimant’s psychological overlay. In both Dollar and the instant case, Dr. McClure administered the Zung Depression Test and found that the respective claimant had psychological overlay.

In Dollar, the COCA concluded that the Oklahoma legislature had indicated chiropractors were equivalent to medical doctors, noting that 85 O.S. 2011, § 326(D) provides: “The term ‘physician’ as used in this section shall mean any person licensed in this state as a medical doctor, chiropractor, podiatrist, dentist, osteopathic physician or optometrist.”

The Supreme Court countered that a chiropractor may not diagnose depression merely because a chiropractor comes within the definition of “physician.” The high court added that a chiropractor is not the equivalent of a medical doctor who has some training in psychology, that the fact that all the medical occupations listed in § 326(D) had been defined as physicians did not mean they were equally competent to diagnose depression based on the “physician’s” administration of the Zung Depression Test and the patient’s oral report to the physician of feelings of depression. If such were the case, indicated the court, a dentist or an optometrist could make the same diagnosis because each was defined in the statute as a “physician.”