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Gann v. Vickers3/15/2005
sychological condition. The district court determined, based on other federal Social Security benefits cases and relevant federal regulations, that the testimony of a clinical psychologist was an acceptable medical source, and the district court noted that physicians, except those specializing in psychiatry, were unqualified to diagnose psychological disorders.
While Ross v. Shalala, supra, certainly has some relevance in the realm of Social Security disability benefits law, we decline to apply its findings to the present workers' compensation case, and we turn instead to the following discussion:
It might be thought obvious that this general principle [the need for expertise in medical witnesses corresponding to complexity of medical problem] would require psychiatric testimony when the question at issue is the presence of psychological overlay or traumatic neurosis, and most courts have so held. Thus, Louisiana's First Circuit reached this result in a case in which the claimant's disability was found to be solely the result of conversion hysteria, but the only medical testimony supporting such a finding was given by one doctor with training in internal medicine and cardiology. The court held that the testimony of a psychiatrist or neurologist was necessary in order to support such an award, and remanded the case for further medical examinations. A few years later, Louisiana's Third Circuit held just the opposite, without bothering to distinguish the First Circuit's decision, and ignoring its own statement only the year before that " ny claim based on traumatic neurosis or psychological overlay must be substantiated by competent psychiatric opinion." It should be added that the Third Circuit has considerable company in its most recent position.
7 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law ยง 128.05 at 128-21 to 128-22 (2004). See, Barrett v. Coast Range Plywood, 294 Or. 641, 661 P.2d 926 (1983) (holding that physicians, even though not specialists in psychology or psychiatry, were competent in workers' compensation case to testify regarding diagnosis of conversion hysteria and that fact they are not psychotherapists may go to weight accorded their testimony); Guillory v. Travelers Insurance Company, 326 So. 2d 914 (La. App. 1976) (finding trial court in workers' compensation case did not err in allowing introduction of medical doctors' testimony as to diagnosis of conversion hysteria), writ denied 331 So. 2d 494 (La. 1976).
In the present case, the review panel concluded that the trial court did not err in relying on the opinions of Bowman. The review panel found that Vickers' challenge to Bowman's qualifications went more to the weight to be accorded Bowman's opinions than to their admissibility. We agree. Bowman first saw Gann in December 1993, following her back injury in May of that year, and saw Gann many more times over the intervening years prior to trial. Clearly, Bowman was in a better position than was Vickers' expert, Davis, who evaluated Gann on one occasion in January 2000, to identify the onset of Gann's psychological symptoms and to form some reasoned medical opinion as to their cause. Gann's mental state was clearly of concern to Bowman in his evaluation of her as a surgical candidate, and it seems reasonable to assume that the ability to make evaluations of conditions affecting a patient's suitability for orthopedic surgery, Bowman's area of expertise, is within Bowman's training and qualifications. Even Davis, when questioned at trial as to Bowman's competency to provide psychiatric care, stated: "Well, he's a physician. Orthopedic physicians, family doctors, will treat depressive symptoms at times. I guess I wouldn't have a p
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