Rebutting Treating Physician Presumption

A recent Court of Appeal case discussed the proper way to rebut a treating physician’s presumption under Labor Code section 4062.9.

Under Labor Code section 4061 when you do not agree with the permanent disability rating and under Labor Code section 4062 when you do not agree with the permanent and stationary status of the treating physician either side may obtain a qualified medical examiner’s (QME) report.

Li this case the applicant had a 2.25 percent disability from the treating physician. The applicant disagreed and got a QME report. The referee believed the applicant’s QME report did not rebut the presumption as opinioned in Minniear v. San Antonio Community.College District, Minniear was an Appeals Board en banc decision which has now been given legitimate authority in this appellate decision. The appellate decision concurs with the following principles enunciated in Minniear. The presumption in section 4062.9 affects the burden of proof. “ The presumption requires the party against . whom it operates to show, by a preponderance of medical opinion, that a different level of impairment exists….  The presumption applies to any and all medical issues covered by section 4061 and 4062. Thus, Minniear states that a preponderance of indicating a different level of impairment may rebut the treating physician’s view on the appropriate medical treatment and whether the disability is temporary or permanent at a given time,”

The appellate court indicated that Minniear indicated that evidence from a lay person is not substantial evidence; medical proof is required on diagnosis, prognosis and treatment which are beyond the bounds of ordinary knowledge. Li the present case, however, the appellate court accepted testimony of the applicant that his condition had worsened since he had seen the treating physician. This testimony in conjunction with the QME report in the present case to overcome the presumption of the treating physician. The court stated that unless the treating physician’s opinion is clearly no longer valid, it will not be considered of lesser value than the QME report. “Allegations that the treating physician’s position is out of date must be specific, in accordance with Board Rule 10616, and supported by substantial evidence, not mere conjecture.

Thus, it would appear the presumption could also be rebutted by showing the applicant’s condition had improved since the treating physician’s report. This would have to be supported by medical evidence.  One such piece of evidence the court has suggested is that the prior X-rays the treating physician relied upon were equivocal.

Thus, the treating physician’s presumption may be rebutted by showing that it is outdated.

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

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

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