Substantial Medical Evidence: Why 'Conclusory' Is the Word That Sinks a QME Report

Q: Which cases define substantial medical evidence?

Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 is the leading en banc decision. It builds on Granado v. WCAB (1968) 69 Cal.2d 399, which required the reasoning behind an opinion rather than the bare conclusion, and Zemke v. WCAB (1968) 68 Cal.2d 794, which rejected opinions based on an incorrect legal theory.

Q: Does the substantial evidence standard apply only to apportionment?

No. Escobedo was an apportionment case and its criteria are applied most strictly to impairment and apportionment opinions, but every opinion and conclusion in a medical-legal report has to meet the standard to be relied on.

Short answer: a QME opinion counts as substantial medical evidence only if it is framed in terms of reasonable medical probability, is not speculative, rests on pertinent facts and an adequate history and examination, and sets out the reasoning that connects those facts to the conclusion. That test comes from Escobedo v. Marshalls (2005), the Appeals Board's en banc decision on apportionment, and it applies to every opinion in the report, not only apportionment. An opinion that states a conclusion without the reasoning is called conclusory, and a judge cannot rely on it.

This is the concept new QMEs most often have never heard of, and the one that decides whether a report is used or discarded. Session 2 of Perry J. Carpenter, DC, QME's report writing course treats it as the single most important idea in medical-legal writing. Having read the cases, that is not an overstatement.

What a conclusory opinion looks like

Here is one:

In my opinion, the applicant became permanent and stationary on June 14, 2014.

Nothing about that sentence is wrong. It might be exactly right. It is still worthless as evidence, because the reader has no way to know why the physician picked that date. Was it the last treatment note? A plateau in range of motion across three visits? The date the surgeon released the patient? A guess?

Without the why, the parties cannot evaluate the opinion, opposing counsel cannot test it, and the judge cannot adopt it. The Appeals Board has been saying this since the 1960s. Granado v. WCAB (1968) held that a medical report is not substantial evidence unless it sets forth the reasoning behind the physician's opinion rather than merely the conclusion. Zemke v. WCAB, the same year, added that an opinion cannot rest on an incorrect legal theory that supplies no basis for the finding. Escobedo pulled those threads together into the test everyone now uses.

The Escobedo test

Marlene Escobedo injured her right knee working at a Marshalls store. The treating physician found impairment in both knees and apportioned none of it to her pre-existing degenerative arthritis. The defense QME found that half the impairment came from the arthritis. The applicant's attorney argued the QME's apportionment was not substantial evidence because it did not explain, in adequate detail, how the degenerative changes had caused disability.

The Board used the case to lay out what a medical opinion needs in order to be relied on for permanent disability and for apportionment. Five criteria:

Reasonable medical probability. The opinion must be more likely true than not. Not certainty, and not possibility. Fifty-one percent or better, in the physician's professional judgment.
Not speculative. No surmise, conjecture, or guess. The opinion needs a factual anchor in the history, the records, or the examination.
Based on pertinent facts. The facts relied on have to be the relevant ones and still germane. An opinion built on facts that later records superseded fails here.
Based on an adequate history and examination. A thin history or a cursory exam cannot support a detailed conclusion, and readers can tell. A non-physician reading the physical examination section can see which tests were done and which were skipped.
Sets forth the reasoning. The how and the why. For apportionment specifically, the opinion has to show familiarity with the concept, describe the exact nature of the apportionable disability, and explain how and why the industrial injury caused one portion and other factors caused the rest.

The Board's summary line is the one to remember: the value of an expert's opinion lies in the material it is fashioned from and the reasoning that moves from that material to the conclusion. The opinion is no better than the reasons it rests on.

In Escobedo itself, the QME who explained the arthritis apportionment won. The physician who did not apportion, and did not explain why not, lost.

Why this lands hardest on impairment and apportionment

Every opinion in a QME report has to meet the standard, but two sections get scrutinized far more than the rest: the impairment rating and the causation of the impairment. Those two numbers determine the permanent disability award. They are the reason depositions happen.

Being wrong is survivable. Dr. Carpenter makes the point that a physician can be entirely wrong in a conclusion and the report can still be useful, because the parties can see the reasoning and argue with it. What they cannot work with is an opinion that gives them nothing to argue with. Take a position, show your work, and accept that the other side may disagree. A clearly reasoned wrong opinion is evidence. An unreasoned right one is not.

How to write reasoning into a report

The practical method is mechanical, and that is its virtue.

After every opinion or conclusion in the report, add a short paragraph that begins with a phrase like "My reasons for this conclusion include:" followed by bullet points. Each bullet names a fact and where it came from: a page in the records, a measurement from the exam, a finding on imaging, a statement in the history. Where the conclusion rests on a legal concept, apportionment being the obvious one, name the concept and show that you are applying it correctly.

Then, at the end of the impairment section and again at the end of the apportionment section, add a statement that summarizes the basis for the opinions above it. Dr. Carpenter's version, which he gives out as a template, covers the same five points in the physician's own voice:

The opinions are based on reasonable medical probability and the physician's professional experience, not on certainty.
They rest on an adequate history, as documented in the records and clarified by the examinee at the evaluation.
They rest on the physician's own examination, on each date the examinee was seen. Listing three examination dates over several years tells the reader more about the depth of the opinion than any adjective could.
They rest on review of the available diagnostic studies, any new studies ordered, any research into the findings, and any consultation with the interpreting radiologist or electrodiagnostic physician.
They do not rely on speculation or conjecture.

The statement has two audiences. The obvious one is the parties and the judge, who see that the physician knows the standard and has applied it. The less obvious one is the physician, who has to read each opinion against the five criteria before signing and rework any that fall short. If the statement is pasted in as boilerplate over opinions that do not actually meet it, it makes things worse, because it hands opposing counsel a checklist to cross-examine from.

The deposition test

The cleanest way to understand substantial evidence is to imagine the deposition.

An attorney who likes your opinion will walk you through the five criteria as friendly questions. Did you take a history? Did you examine the applicant on the date stated? Did you review the June 2011 MRI? Did you consult with anyone? Is any part of your opinion based on speculation? Each yes builds the record that your opinion is substantial.

An attorney who does not like your opinion asks the same questions looking for a no. Which records did you not review? What examination did you not perform? What is the basis for this date? Why did you assume the arthritis was asymptomatic before the injury?

Dr. Carpenter's rule is not to sign a report unless you would be comfortable defending every opinion in it under that second line of questioning. If any conclusion makes you uneasy imagining the cross, it is not ready.

Where the facts come from

Four of the five Escobedo criteria are about the factual foundation: pertinent facts, adequate history, adequate examination, no speculation. The examination is under the physician's control. The history and the pertinent facts come substantially from the records, and in a comp file those records are the largest and least organized input to the whole report.

That is the practical problem with substantial evidence. The reasoning bullets have to cite specific findings on specific dates, and the physician has to have actually seen them. A physician working from a thin summary cannot cite the March 2019 orthopedic note that documents pre-injury knee complaints, because the summary did not mention it, and the apportionment opinion that depends on it is speculative by default.

Lexamed builds the chronology from the full production with a page citation on every entry, so when the reasoning paragraph says the examinee reported bilateral knee pain to a treating physician eighteen months before the industrial injury, it points to the page. The physician reviews the chronology, judges what is pertinent, and writes the opinion. The evidence underneath it is already organized and already cited.

Frequently asked questions

What is substantial medical evidence in California workers' compensation? The standard a medical opinion must meet before a workers' compensation judge can rely on it. Under Escobedo v. Marshalls (2005), the opinion must be framed in terms of reasonable medical probability, must not be speculative, must be based on pertinent facts and an adequate history and examination, and must set forth the reasoning behind the conclusion.

What does conclusory mean in a medical-legal report? An opinion that states a conclusion without the reasoning that supports it. Conclusory opinions are not substantial evidence and cannot be relied on, regardless of whether the conclusion happens to be correct.

What does reasonable medical probability mean? That the opinion is more likely true than not, in the physician's professional judgment. It does not require certainty. It excludes opinions that are merely possible.

Which cases define substantial medical evidence? Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604 is the leading en banc decision. It builds on Granado v. WCAB (1968) 69 Cal.2d 399, which required the reasoning behind an opinion rather than the bare conclusion, and Zemke v. WCAB (1968) 68 Cal.2d 794, which rejected opinions based on an incorrect legal theory.

Does the substantial evidence standard apply only to apportionment? No. Escobedo was an apportionment case and its criteria are applied most strictly to impairment and apportionment opinions, but every opinion and conclusion in a medical-legal report has to meet the standard to be relied on.

How do you make a QME opinion substantial? Follow each conclusion with the reasons for it, citing the specific facts from the history, records, and examination that support it. Close the impairment and apportionment sections with a statement confirming the opinions rest on reasonable medical probability, an adequate history and examination, review of the diagnostic studies, and no speculation. Then check each opinion against those criteria before signing.

Can a wrong opinion still be substantial evidence? Yes. A clearly reasoned opinion can be substantial evidence even if the judge ultimately disagrees with it, because the parties can evaluate the reasoning. An unreasoned opinion is not substantial evidence even if its conclusion is correct.