AP Writes: Causation may be Established by Physical Therapist
The appeals panel for the Division of Workers’ Compensation published an opinion on June 9, 2015 which affirmed a hearing officer’s decision and order that found the compensable injury extended to medial and lateral meniscus tears of the left knee, chondromalacia of the patellar femoral joint including femoral trochlea of the left knee, and Piriformis syndrome. In Texas Division of Workers’ Compensation Appeals Panel Decision No. 150372, the appeals panel wrote that there was sufficient causation evidence from a physician to establish the compensability of Piriformis syndrome as well as the medial and lateral meniscus tears of the left knee as well as chondromalacia of the patellar femoral joint including femoral trochlea of the left knee.
But the appeals panel went further than necessary to affirm the decision. In a portion of the decision that was unnecessary to discuss when resolving the case (dictum) the appeals panel wrote:
A written decision is issued in this case to clarify that a physical therapist’s note should not be discounted as an expert medical opinion on causation merely because a physical therapist is not a physician. The hearing officer in this case erred in failing to consider Mr. B’s note merely because Mr. B is a physical therapist.
The parties did not appeal this decision by the hearing officer. The question was not briefed. And, as will be shown below, the appeals panel does not appear to have adequately performed independent research to reach the correct conclusion. In trying to explain how a physical therapist may be qualified to render an opinion on medical causation, the appeals panel wrote:
Although a physical therapist is not listed under the definition of “doctor” in Section 401.011(17), medical evidence may be generated by a number of sources other than by individuals who are defined as “doctors” in Section 401.011(17). That medical evidence may be in the form of physical therapist’s reports and notes, and by any number of other health care providers. See Appeals Panel Decision (APD) 970845, decided June 23, 1997, citing APD 970730, decided June 9, 1997. See also APD 990803, decided June 2, 1999, and APD 041849, decided September 20, 2004. The weight to be given such medical evidence is in the province of the hearing officer. APD 990803.
This is a dubious proposition for the appeals panel to adopt – even in dictum. The standards required to prove causation have been repeatedly announced by the appellate courts, and those decisions rely heavily upon rights and responsibilities created by the Texas legislature.
For example, registered nurses, who have far more education and training in the medical arts, are generally considered not qualified to address the cause of an injury or disease. This is because their training does not extend to causation and also because their licenses do not permit them to diagnose injuries. The El Paso Court of Appeals succinctly explained the rule in Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 90-91 (Tex. App.—El Paso 2005, no pet.)
Non-physicians may qualify as medical experts by virtue of special experience. As a nursing expert, Dr. Castillo could provide an expert opinion on those matters within her experience and training. Thus, she could testify regarding the nursing standard of care and how that standard was breached. However, a nurse is prohibited from making a medical diagnosis or prescribing corrective or therapeutic treatment. Tex.Occ.Code Ann. § 301.002(2)(Vernon 2004) (defining “professional nursing” to include the observation, assessment, intervention, evaluation, rehabilitation, care and counsel, or health teachings of a person who is ill, injured, infirm, or experiencing a change in normal health processes, but expressly providing that the term does not include acts of medical diagnosis or prescribing therapeutic or corrective measures); Therefore, Dr. Castillo is not qualified to express an expert opinion on subjects that require making a medical diagnosis. See Costello, 141 S.W.3d at 248 (holding that registered nurse not qualified to express expert opinion as to cause of patient’s death); see also Arlington Memorial Hospital Foundation, Inc. v. Baird, 991 S.W.2d 918, 921 (Tex.App.-Fort Worth 1999, pet. denied)(nurse was not qualified to medically diagnose thermal burns, and therefore, could not testify regarding causation); Pace v. Sadler, 966 S.W.2d 685, 690 (Tex.App.-San Antonio 1998, no pet.)(although qualified to render expert opinion on nursing standard of care, nurse was not qualified to medically diagnose heart condition).
The Tyler Court of Appeals has held in In re Highland Pines Nursing Home, Ltd., that a nurse was qualified to express an expert opinion regarding the causal link between the breach of the standard of care by the staff at a nursing home and the development of the patient’s decubitus ulcers. But the court went on to hold that the nurse was not qualified to express an opinion concerning the causal link between the negligence and the cause of death. Dr. Castillo’s report and CV do not establish that she has any training, education, skill or clinical nursing experience relevant to diagnosing the causes of decubitus ulcers or any injuries resulting from decubitus ulcers and their treatment. The Esquivels failed to show that Dr. Castillo possesses the expertise which would qualify her to express an opinion as to the causal link between the nurses’ alleged failure to observe and document skin integrity and breakdown of tissue and the development of the decubitus ulcers or any other resulting injuries. (Some citations omitted).
Like nurses, physical therapists are prohibited by the Occupations Code from engaging in “diagnosing diseases or in practicing medicine as defined by law on the basis of a” physical therapists license. See Tex. Occup. Code § 453.006. Therefore, the reasoning in Esquivel would seem to apply to physical therapists as well. The appeals panel erred, in our opinion, in writing an opinion about a hearing officer’s ruling that had not been appealed, was not briefed by the parties, and was not necessary to address in deciding the issues that were appealed.
FOLIO
