Commentary: The Challenges in Dealing With Cautious Medical Testimony
Five Out of Seven Ohio Supreme Court Justices Say Medical Opinion Was Ambiguous
In a 5-2 decision, the Supreme Court of Ohio affirmed a finding by the Tenth District Court of Appeals that held the state’s Industrial Commission had abused its discretion by relying upon a report by a licensed psychologist to deny the request of an injured worker for PTD compensation on the basis that the report was equivocal and, therefore, not proper evidence to support the Commission’s determination [State ex rel. Pilarczyk v. Geauga County, 2019-Ohio-2880, 2019 Ohio LEXIS 1453 (July 18, 2019)]. There was a layer of unstated irony in the Court’s majority and dissenting opinions. The dissent essentially argued that the psychologist’s report was unambiguous. Yet, if that is true, why couldn’t seven learned and experienced justices agree as to the report’s underlying meaning? This case “clearly” illustrates the difficulty the workers’ compensation system often has with cautious medical testimony.
Background
Pilarczyk sustained a back injury in 2002 while working as a maintenance worker for Geauga County. His workers’ compensation claims were allowed for various spinal and psychological conditions. He received TTD compensation until June 15, 2015. In July 2015, Pilarczyk applied for PTD compensation.
In 2015, Pilarczyk underwent a series of physical and psychological examinations. In January, his treating orthopedic physician, Dr. Kellis, opined that Pilarczyk’s physical conditions would continue indefinitely “without any present indication of recovery,” that his injuries prevented him from engaging in “any gainful employment,” and that he was permanently and totally disabled as a direct result of his work-related injuries.
Independent Psychological Evaluation
In April, Dr. Gruenfeld undertook an independent psychological evaluation of Pilarczyk at the request of the Bureau of Workers’ Compensation. In his report, Dr. Gruenfeld responded to six questions posed by the Bureau. In response to question No. 1, Dr. Gruenfeld opined that Pilarczyk had reached MMI with respect to his psychological conditions. The case turned on Dr. Gruenfeld’s answers to the second and third questions:
- Can the injured worker return to his/her former position of employment? If yes, are there any restrictions or modifications?
The claimant’s mental health issues likely do prevent him from returning to his former position of employment. His problems with depression continue to manifest including problems with focus and motivation. It is believed that his problems with distractibility and motivation inhibit his ability to return to work at this time.
- Please provide a summary of any functional limitations solely due to the psychological condition in this claim. In other words, please indicate the type of work the injured worker can perform and supportive rational[e] for your opinion.
Given his current mental health issues, he is unlikely to thrive in a moderate to high stress job setting. He is more likely able to work a job in an office where there is less stress to trigger his depressive based condition. (Boldface sic.)
In response to question No. 4, Dr. Gruenfeld recommended vocational rehabilitation for Pilarczyk and expressed his opinion that “he may be able to manage a vocational rehabilitation program at this time.” In response to question Nos. 5 and 6, Dr. Gruenfeld restated his belief that Pilarczyk had reached MMI and stated that Pilarczyk was no longer obtaining any benefits from psychotherapy and should complete his treatment goals and finalize the termination of therapy over the ensuing five months.
Additional Experts
The Commission also referred Pilarczyk to musculoskeletal specialist Dr. Mehta for a physical assessment and to Dr. Pecorelli for a psychological assessment. Both found that Pilarczyk had reached MMI for his allowed conditions. Dr. Mehta opined that based solely on Pilarczyk’s allowed physical conditions, he could perform work within the sedentary work capacity category, although he would require breaks and an ambulatory assistive device. Dr. Pecorelli opined, however, that Pilarczyk’s ongoing symptoms of emotional distress would prove to be barriers for any return to gainful employment and that Pilarczyk was “incapable of work.”
Decisions by Hearing Officer & Commission
In October 2015, a commission staff hearing officer (“SHO”) issued a tentative order granting Pilarczyk’s application for PTD compensation based on Dr. Pecorelli’s report. The bureau submitted a notice of appeal, arguing that PTD compensation should be denied because Dr. Gruenfeld’s report had stated that Pilarczyk was likely able to work in an office job and that he could participate in vocational rehabilitation.
In June 2016, a different SHO issued an order denying Pilarczyk’s application for PTD compensation based on the reports of Drs. Mehta and Gruenfeld and on nonmedical factors. The order did not mention Dr. Pecorelli’s report or his conclusion that Pilarczyk was incapable of work. It instead stated with respect to Pilarczyk’s psychological condition, “Dr. Gruenfeld opines Injured Worker is capable of work in a low stress job.” Pilarczyk twice moved for reconsideration, arguing in part that the commission’s reliance on Dr. Gruenfeld’s report was improper because the report is equivocal and “internally inconsistent.” The commission denied both requests.
Tenth District Court of Appeal
In March 2017, Pilarczyk sought a writ of mandamus in the Tenth District. The District’s magistrate agreed with Pilarczyk that the Commission abused its discretion by denying PTD compensation based on Dr. Gruenfeld’s report. Although the magistrate concluded that Dr. Gruenfeld’s response to the third question could be accepted as Dr. Gruenfeld’s opinion that Pilarczyk was capable of working in a low-stress job, the magistrate found that Dr. Gruenfeld’s report should be excluded as evidence because Dr. Gruenfeld responded ambiguously to question No. 2.
The magistrate reasoned that Dr. Gruenfeld’s response to question No. 2 stated both that Pilarczyk’s mental-health issues “prevent him from returning to his former position of employment” and that “his problems with distractibility and motivation inhibit his ability to return to work at this time.” (Emphasis added.) The magistrate noted that “former position of employment” had a specialized meaning in workers’ compensation law and found that it was unclear whether the phrase “return to work” referred solely to a return to Pilarczyk’s former position or “whether Dr. Gruenfeld intended to stray beyond the scope of the second query and to offer an opinion that [Pilarczyk] cannot return to any work at this time.” The magistrate indicated that it was not the court’s role to resolve this ambiguity. Accordingly, Dr. Gruenfeld’s report had to be eliminated from further evidentiary consideration.
The Tenth District overruled the Commission’s objection to the magistrate’s decision, adopted the decision, and issued a writ of mandamus ordering the commission to vacate its order denying PTD compensation and to enter a new order adjudicating Pilarczyk’s application in conformity with the court’s decision. The commission appealed.
Supreme Court Majority
The majority stressed that the sole issue before the Court was whether Dr. Gruenfeld’s report constituted “some evidence” in support of the Commission’s determination that Pilarczyk could engage in sustained remunerative employment despite his psychological condition. According to the majority, equivocal medical opinions are of no probative value and, thus, “are not evidence.” Citing an earlier decision, the majority added that a state was ambiguous if it was “susceptible of more than one reasonable interpretation.”
The majority agreed that the report was susceptible to more than one reasonable interpretation and that wasn’t the role of the appellate court to resolve that ambiguity. Dr. Gruenfeld’s report presented an ambiguity—whether “return to work” as the doctor used the term in his response to question No. 2 meant “return to his former position” or “return to work.” To accept the Commission’s decision would require the court, said the majority, to assign a meaning not apparent from the face of the report. The majority said the answer to question No. 3 was also ambiguous. While it was not clear that Dr. Gruenfeld was even attempting to offer a firm opinion on whether he believed that Pilarczyk could work, it was possible that he believed that Pilarczyk was not psychologically capable of any work. Based on the foregoing, five justices voted to affirm the Court of Appeals.
Minority Opinion
Justice Kennedy, joined by Justice Dewine dissented. According to the justice, ambiguous statements are considered equivocal only when they are not clarified. In some cases, the issue was not so much the doctor’s position as it was his or her communication skills. Justice Kennedy said that, taken as a whole, Dr. Gruenfeld’s opinion was “some evidence” that Pilarczyk was capable of some remunerative employment.
Commentary
As Arthur Larson originally noted, “The phrase ‘supported by some evidence’ is often found contrasted with its opposite, ‘based on speculation and conjecture’” [Larson’s Workers’ Compensation Law, § 130.06]. That is to say that a fact is not proved by showing of its possibility, no matter how strong that showing is.
And yet, the distinction between probability and possibility should not follow too slavishly the witnesses’ choice of words, as sometimes happens in respect to medical testimony. It is a common experience of workers’ compensation and personal injury lawyers to find that the more distinguished a medical witness is, the more tentative and qualified are his or her statements on the witness stand. Such a witness will testify that the sledge-hammer blow on the claimant’s head might have caused claimant’s headaches, but hesitates to say positively that this was the only possible cause, and may concede on cross-examination that there could conceivably be other causes. The weight of such testimony, however, should not be too sharply discounted because of the disposition of the highly trained scientific mind to refrain from unqualified statements or opinions on such matters as causation
See, for example, the classic “old” case, Allen v. Coal Operations Cas. Co., 124 So. 2d 344 (La. Ct. App. 1960). The claimant was struck on the head by a 150-pound stick of pulpwood, and thereafter continued to have severe headaches and to spit up blood. In spite of the underlying facts, the doctors were unable to make a definite diagnosis as to the exact cause of the claimant’s symptoms. The court nevertheless affirmed an award for permanent and total disability.
As observed in the Larson treatise, since medical witnesses will rarely, if ever, state their opinions in terms of “certainly” or “definitely,” courts are frequently called on to adjudge the sufficiency of testimony couched in terms of “might have,” “could have,” “possibly,” “probably,” “I think,” and “I feel.” Courts in most states have, at least in some cases, held medical testimony in these and similar terms sufficient to sustain an award. Many of these same courts have, in other instances, held testimony in these same terms insufficient. No absolute all-purpose rule can be expected on this point; a great deal depends on what else the record contains by way of either corroboration or contradiction.
In many respects, that’s what the dissenting opinion in Pilarczyk was attempting to do. While the doctor’s answer to question No. 2 could perhaps be subjected to two meanings, the dissenting justice said that ambiguity was cured when one looked at the opinion as a whole.
Not a “Word Game”
As we point out in the Larson treatise:
The compensation process is not a game of “say the magic word,” in which the rights of injured workers should depend on whether a witness happens to choose a form of words prescribed by a court or legislature. What counts is the real substance of what the witness intended to convey, and for this purpose there are more realistic approaches than a mere appeal to the dictionary [Larson, § 130.06[2][e].