Failure To Divulge History Will Not Defeat A Claim

In a very surprising unpublished opinion a court of appeals has ruled that an applicant does not have to divulge her full medical history to the defense evaluating doctor.

The applicant filed a psychiatric stress claim against her employer. The employer first referred her to a doctor who indicated she had prior family problems and troubles with her ex-husband and concluded the claim was nonindustrial.  She was also sent to a doctor by the compensation earner. This doctor noted a history of prior depression. This doctor found the claim noncompensable as a good faith personnel action under Labor Code section 3208.3.

The applicant was then evaluated by her own psychiatrist who reviewed records from Kaiser noting she had treatment with Prozac for family problems.  Her own doctor put in his report “I am concerned the patient failed to disclose…” to the defense doctor her prior treatment.  Her doctor still found the psychiatric injury compensable.

The referee at trial denied her claim, even though he found her credible, for her nondisclosure to defense doctors. The referee indicated that the higher threshold of 3208.3 required the applicant to reveal all relevant and substantial history. The referee conceded this was a nonculpable omission on the applicant’s part.

Amazingly, the appeals court stated “Contrary to the belief of the Board’s referee, there is nothing in section 3208.3 which requires a claimant to disclose her medical history to an evaluator, let alone a defense evaluator, as a prerequisite to consideration of her evidence of injury.” …  “The Board’s own regulation governing the contents of physicians’ reports, which require the inclusion of a patient’s medical history, states a failure to comply “will not make the report inadmissible but will be considered in weighing such evidence.”

The court indicated that any shortcomings in the defense report were the fault of the defendant for failing to secure the Kaiser records and prepare a proper defense. The court indicated in its opinion that the referee used mere conjecture in his opinion that the claimant never reiterated her medical history to the defense evaluator.  The court indicated the report did indicate that the defense doctor did ask her about prior treatment. The court opined that just because the defense doctor did not comment on that treatment could be easily attributed to a belief on the doctor’s part that it was not material.

The lesson to be learned is that defending a claim requires all prior records should be obtained and sent to the evaluating physician. If applicant’s physician is commenting upon records you do not have, you should obtain them. All records and a deposition, if appropriate, should be sent to your doctor.

Case: Shahmrizadi V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

Newsletter Sign up

Workers Compensation Feed

Recent Newsletters