The Court of Appeals in Pioneer Auto Truck Sales, Inc. v. Dolores Burch (decided 8/31/2010) affirmed the Board's ruling in favor of the employee based on a report obtained by her attorney without the employee ever being examined by the physician writing the report. Ms. Burch suffered a shoulder injury on the job on November 3, 2006. She went to the ER and to her family physician for treatment and missed less than a week of work. She continued to work for Pioneer until January 19, 2007, and did not seek any additional medical treatment for her shoulder until March 19, 2007, though she continued to take medication and wear a sling during that time.
In March, 2007, Ms. Burch saw a physician and had an MRI of her shoulder that revealed "a small full thickness rotator cuff tear and possible mild impingement." She then filed her Application for Adjustment of Claim with the Board.
In preparation for the hearing, counsel for Ms. Burch hired Dr. Buschbacher to review the medical records and render an opinion concerning causation and her medical condition. Dr. Buschbacher issued a report which stated that he had not examined the employee, but, based on the medical records provided, he believed her shoulder condition to have been caused by the work injury. Defendant objected to the admissibility of the report on the basis that Dr. Buschbacher had not examined the employee and he did not provide all of the information required by Ind. Code §22-3-3-6(e). The Single Hearing Member admitted the report, finding that it did comply with the statute, and issued an Award in favor of Ms. Burch. The Full Board and the Court of Appeals agreed.
In affirming the decision in favor of the employee, the Court of Appeals noted that medical reports are admissible even though the doctor who writes them did not examine the claimant as long as they comply with the statute (citing Borgman v. Sugar Creek Animal Hosp., 782 N.E.2d 993, 997-98 (Ind.Ct. App. 2002) trans. denied. In addition, the Court noted that Dr. Buschbacher's report provided the history of the employee's injury (as reflected on the medical records), her diagnosis, his opinion on causation, and his signature. Therefore, the Court found that the report did comply with the requirements of the statute.
This decision (and the decision in the prior Borgman case) establishes that a doctor who renders an opinion need not examine the patient in order for that opinion to be admissible at hearing. However, an examination of the employee by the physician would certainly lend added credibility to the physician's medical opinion, especially if there are differing opinions among the physicians consulted and the reports submitted to the Board.
This is a "Not for Publication" decision, which means that it cannot be cited to support other decisions in the future. However, it does provide guidance on how the Board and the Court of Appeals is likely to rule on other cases with similar issues.