With the implementation of Senate Bills 1 and 130 on August 28, 2005, the Division of Workers’ Compensation will embark upon an uncharted journey in several areas.  Because this journey is uncharted, judges and lawyers speculate that there will be an increase in litigation in order to “chart the waters.”    In conducting the litigation it must be remembered that practice before the Missouri Division of Workers’ Compensation is the Practice of Law.[1] While the system is designed to be informal and a vast majority of cases are settled or otherwise disposed of without the necessity of a trial,[2] trials are conducted under the rules of evidence in Missouri civil cases.[3]  The party claiming a particular benefit or defense bears the burden of proving a causal connection or lack thereof between the accident and the relief desired by showing that such is “more likely to be true than not true.”[4]  Medical evidence is not required when injuries and disability are within lay understanding.[5]  “In line with the general tendency of administrative law to recognize the expertise of specialized tribunals, compensation boards may rely to a considerable extent on their own knowledge and experience in uncomplicated medical matters, and in such cases awards may be upheld without medical testimony or even in defiance of the only medical testimony.”[6]  However, in cases of sophisticated injury such that surgery or other highly scientific techniques for diagnosis are necessary, expert testimony is necessary, even for an administrative tribunal.[7]  This article deals with meeting evidentiary burdens through the use of documentary medical evidence.[8]

FOUNDATIONAL REQUIREMENTS

            Documentary medical evidence is admissible at least five ways. First it is admissible by stipulation.[9]  Second a complete medical report is admissible if the requirements of RSMo. 287.210.7 are met.  Those requirements include notice 60 days prior to trial of the intention to submit the report along with copies of all medical records received by the physician. The opposing party has 10 days to object that the report does not meet the requirements of a complete medical report.  If no objection is made the report is admissible and any objections are deemed waived. The offering party must make the physician available for cross-examination at least seven days before the hearing.[10]  Third, certified copies of treatment records of “Every hospital or other person furnishing the employee with medical aid,” are admissible.[11] Fourth, medical records are admissible as business records under the Business Records Act. The foundation can be met by either affidavit or testimony of the custodian.[12] Fifth, the records may be admissible under the Administrative Procedure Act.[13]   If that is indeed the case, it negates the need for certification if it appears from the face of the documents that they are business records.[14]  While it is not clear the extent to which the seven-day rule applies to documentary evidence, it appears the best practice is to exchange medical records and reports at least seven days prior to trial or deposition.[15]

MEDICAL RECORDS vs. MEDICAL REPORTS

Medical records are much easier to get into evidence than medical reports. So identification of a particular document as either a medical record or medical report[16] becomes critical. Because in the difference in definition often lies the admissibility of crucial evidence, the difference becomes critical. Kauffman v. Tri-State Motors[17] demonstrates this point. In Kauffman the claimant sought death benefits contending that her husband died from work related exposure to radiation. The ALJ and Commission denied the case pointing out that no medical evidence of causation was presented. The claimant argued on appeal that a letter from the decedent’s doctor to the claimant’s lawyer expressing an opinion on causation should have been admitted. The Court of Appeals noted that requirement’s of RSMo 287.210 were not met and that the letter was not a business record.    Specifically, the court stated: “Here, the letter in issue was in response to a letter from Employee’s attorney requesting an opinion, which would assist in the handling of the workers’ compensation claim.”[18]  It did not qualify as a business record because it “was obviously not prepared in the regular course of examining or treating Employee.”[19]  Hence, the claimant did not meet her burden of showing medical causation.

In another case, seven pages of physical therapy documents were excluded because they contained a letter from an attorney and three pages entitled “Evaluation” which was a summary of the treatment and conclusions.  The Court said that the exhibit did not qualify as a “record of medical aid” as contemplated by RSMo.287.140.6[20] nor as a business record under RSMo. 490.690 because it was not made in the regular course of business near or at the time of the act, condition or event.[21]  The fact the letters were addressed to another party was not the critical factor.  Often examination notes of treating physicians are kept in the form of letters to other doctors, claims adjusters or attorneys.   The key factor is whether the document was generated as part of the examination and treatment of the patient near or about the time of the examination or treatment.  

SPECIFIC CONTENT OF MEDICAL RECORDS

The fact that the record has been duly qualified does not make everything in the record admissible.[22]  Upon proper objection portions can be excluded.[23]  Some objections specifically noted by the appellate courts are: notations based upon speculation and conjecture,[24] a statement by a third party (hearsay),[25] irrelevancy,[26] inadequate source of information,[27] self serving,[28] and beyond the scope of legitimate expert testimony.[29]   “[T]he appropriate test for admissibility of specific portions of business records is whether the person whose opinion is recited in the record could have testified regarding those portions if present at trial.”[30]   This includes statements of expert medical opinion such as medical causation.[31]  The fact that an expert is not available for cross-examination is irrelevant once the record is admitted.[32] 

There is authority for the proposition that records made for litigation are inadmissible if not made in the regular course of business and the utility is primarily for litigation.[33]  “The term ‘regular course of business’ as used in the Uniform Law ‘must find its meaning in the inherent nature of the business in question and in the methods systematically employed for the conduct of business as a business.’”[34] Kitchen v. Wilson, 335 S.W.2d 38, 43 (Mo. 1960) (quoting Palmer v. Hoffman, 318 U.S. 109 (1943).  In Kitchen a portion of an optometrist’s record was excluded from evidence.  That portion was basically a report made to an attorney explaining the results of a whiplash injury causing eye damage.  Further the court noted there was not finding as to reasonable medical certainty, nor was there any evidence to suggest that an optometrist could testify regarding the results of a whiplash injury.  However, it should be pointed out that the statute relied upon in Palmer did not have the provision for the judge to keep the statement out if the sources of information or method of production did not justify its admission.  Therefore the real test should be the trustworthiness of the document.[35]  “[T]he ‘bottom Line’ regarding the admissibility of business records is the discretionary determination by the trial court of their trustworthiness.”[36]  Contemplation of litigation is but one means of determining trustworthiness.[37]

The claimant’s statement as to how the accident happened is admissible.  The provider wants to know how the patient got hurt because it suggests the nature and extent of an injury and the proper treatment of the injury.  This is admissible even if it goes to show the cause of the accident because it helps in determining how the claimant got hurt.[38]

Statements may be excluded when the records rely on history given by family members under the section of the business records act that “if in the opinion of the court, the sources of information, method and time of preparation were such as to justify admission.”[39]   In essence it appears that this would be hearsay. However, in some circumstances it could be admissible.

The Missouri Supreme Court has stated: 

It would seem that the following parts of a duly authenticated and qualified hospital record should be admissible, unless subject to specific objections such as irrelevancy, inadequate sources of information, as being self serving, as going beyond the bounds of legitimate expert opinion, or on similar substantive grounds:  the physical examination findings, the patient’s symptoms and complaints, treatment and progress records, diagnoses by those qualified to make them, the results of analyses and laboratory tests, X-rays, the behavior of the patient, and those parts of the patient’s history inherently necessary (or at least helpful) to the observation, diagnosis and treatment of the patient.  . . . The matters here noted do not purport to be exclusive. Since the hearsay objection is obviated, we see no reason why a proper medical opinion contained in a hospital record should not be accorded dignity equal to that of a similar opinion from the witness stand; to preserve the right of cross-examination intact as to such matters would be to repeal the statute . . . Much discretion must remain in the trial court, and, of course, all records admitted must be confined to and connected with the bona fide observation, diagnosis and treatment of the patient in question.”[40]   

In that particular case the court noted that the following items were clearly admissible: complaints, physical finding or history of no fracture, medical opinion that not moving her neck would be harmful because she would develop atrophy or fibrosis; recommendation of physiotherapy, and the interpretation of X-rays.  The doctor was presumed qualified because he was identified as a physician.[41]   The Court did not specifically rule on whether or not the statement that the patient was a malingerer was proper because a blanket objection had been made.  Under a blanket objection, if any of the record is admissible the whole thing comes in.  But it was suggested by a cited case, that statements to the effect that complaints are not bona fide are admissible, however inflammatory statements like malingerer that suggest “moral turpitude or wrongdoing” may not be.[42]  Interestingly, the court stated that physicians have the knowledge to make such determinations.[43]

SPECIFIC CONTENT OF COMPLETE MEDICAL REPORTS

            A complete medical report properly placed into evidence is competent evidence of all items in the report.  “[T]he term ‘complete medical report’ means the report of a physician giving the physicians qualifications and the patient’s history, complaints, details of the findings of any and all laboratory, X-ray and other technical examinations, diagnosis, prognosis, nature of disability, if any, and an estimate of the permanent partial disability, if any.”[44]  It obviates the need for a deposition, because the reporting physician can say everything in the report that the doctor would say on deposition.[45] If the opposing party wishes to cross-examine the physician they have the right to do so if they pay for the deposition.  Since that party is paying for the deposition, it makes sense that only meaningful cross-examination would be undertaken.  This section does not apply to Second Injury Fund claims.[46]

CONCLUSION

            Documentary medical evidence properly presented provides the means of meeting the party’s burden of proof.  While deposition or live testimony maybe helpful in some cases, often the same information is readily presentable through either medical records or complete medical reports at much less cost and in much less time.