Applicant Must Object To Primary Treating Doctor

This is a case that was not certified for publication. However, it gives further credence and arguments following the Tenet/Centinela Hospital v. WCAB (Rushing) (2000) 80 Cal. App.4th 1041.

The applicant had an admitted industrial injury to his finger. The applicant was paid temporary disability until he was released to regular work. Three months later the applicant was declared permanent and stationary and released from continuing care by his primary treating physician. The only future medical care provided for in the primary treating physician’s narrative report was for revaluation by a hand specialist and analgesic medicine.

The adjuster advised the applicant, who was unrepresented, that the primary treating physician released the applicant without permanent restrictions. The medical was not served. Applicant was advised of his right to a panel doctor and selected one from the three panel list. He canceled the appointment because he did not receive the medical file from the adjuster within 10 days of the appointment as required.

The applicant then retained an attorney who requested the medical file from the adjuster. The attorney filed an application and selected a new treating doctor. The applicant eventually was found permanent and stationary by the doctor his attorney referred him to.

After this, the applicant’s attorney finally gets the original medicals from the adjuster he objects under Labor Code sections 4061 and 4062.

At trial the Workers’ Compensation Judge (WCJ) found the original treating doctor to carry the presumption and the second doctor’s report to be inadmissible for failing to follow the procedures in 4062.  The applicant petitioned for reconsideration claiming estoppel.  The WCJ indicated this would give the party not complying with 4062 an unfair advantage and thus dismissed the estoppel argument.

The appellate court then reiterated Tenet. The court indicated that once the applicant selected his qualified medical examiner he was required to complete the process pursuant to 4062. His subsequent retention of hiring an attorney did not alter the process.

As for the reports not being served the court indicated that nothing prevented the applicant or later his attorney from following up and obtaining the reports. Since the procedures in Labor Code section 4062 were not followed the subsequent report of the new alleged treating physician were inadmissible.


The ‘Fair Balance’ Test Is Required For A Penalty

A new Appellate Court case has taken the case of SCIF v. WCAB (Stuart), (1998) 18 Cal 4th. 1209 a step further. There is a wealth of information in this case and it needs to be read in its entirety.

The applicant had an injury in 1973.  He was awarded 100% permanent disability and future medical care in 1981. In 1991 the applicant was awarded a 10 percent penalty on all medical benefits. This included future medical benefits and the parties agreed that a check would issue each quarter after medical expenses paid in the previous quarter were calculated.

A penalty payment of $97.87 was delayed to the applicant. The applicant sought a penalty of $40,000.00 under labor code section 5814 for the delay.

The appellate court stated that the burden is on the employer to establish that a delay is reasonable in the payment of benefits. The court referred to the Stuart case to determine whether a delay is unreasonable. You must look to the “totality of the circumstances”. To do this you must look at (1) the size of the late payment, (2) the length of the delay, and (3) the defendant’s history of payment. There must be a “balancing” of the interests of the employer and the employee. This was the “fair balance “ test enunciated in Stuart.

The court, citing Stuart, indicated mat a reasonably short delay caused by human error cannot be considered unreasonable in and of itself. You need to look to see if the solitary instance of human error was corrected upon discovery. The penalty is not determined solely by the number of days payment was delayed. The mere existence of a delay does not give rise to a penalty. Delays of 22 days have been found reasonable.

In this case the court determined that the applicant contributed to the delay by not notifying the employer that the check had not arrived timely. “Failure of the employee to give notice of delayed receipt of a benefit payment is relevant in determining the reasonableness of the delay.” The court referred to Gleason v. WCAB (2000) 65CCC 579, a writ denied case that indicated mat a two-month delay was not unreasonable where the defendant’s first notice of the delay was in a petition for penalties and the defendant promptly paid. This case would seem to now put the burden on the applicant to notify defendant of an untimely payment. If the defendant men promptly responds, men no penalty should be owing.

The court further indicated that imposing such a grossly disproportionate penalty for the inadvertent delay would not serve the purposes of section 5814. This would upset the “balance of fairness”. 11 would create a windfall to the applicant out of proportion to the employers conduct.


Applicant Must Attend Defendants QME Exam

This is a writ denied case. However, it deals with a frequent issue for a defendant. The subject is obtaining a Qualified Medical Exam (QME) before the Mandatory Settlement Conference (MSC).

The applicant had an admitted injury in 1994. The applicant who was unrepresented at the time became permanent and stationary in 1997.  The applicant refused a settlement offer and retained an attorney.

The applicant’s attorney filed a declaration of readiness to proceed in December 2000. The defendant was unrepresented at the time. The defendant obtained counsel who gave notice of their representation on February 5, 2001. No objection to the declaration of the readiness to proceed was filed by the defendant. The defendant then sent notice of a defense medical examination set for March 7, 2001. Applicant’s attorney instructed the applicant not to attend.

The MSC was set on March 13, 2001.  The Workers’ Compensation Judge (WCJ) denied the defendant’s request to have the applicant compelled to attend defendant’s exam.

The defendant filed a Petition for Reconsideration and the Workers’ Compensation Appeals Board panel that reviewed the Petition treated the petition as a Petition for Removal. The panel granted review and rescinded the WCJ’s decision.

The decision is interesting in that it emphasizes the defendant did not file an objection to the declaration of readiness to proceed. Thus, if the defendant would have done so, there may be a different result. This also infers the defendant would have had a legitimate reason for filing an objection to the declaration of readiness to proceed.

The panel indicated that the defendant did schedule the medical examination prior to the MSC. Therefore, applicant should have kept the exam contrary to the applicant’s attorneys instruction.  Since the applicant did not keep the exam the applicant was ordered to attend the examination. However, discovery was otherwise closed.  The panel did elucidate that if the applicant did keep the examination of March 7, 2001 as originally scheduled and the medical report from the doctor was unavailable at the MSC on March 13, 2001, the report would not have been admissible. The panel indicated that the WCJ could have excluded the report pursuant to Labor Code section 5502 (d) (3) and issued an order that, discovery is closed.


Penalty Against An Insolvent Carrier

Generally this newsletter deals with eases that have been decided by the Court of Appeals.  However, this edition deals with a Writ denied case. Lately, it seems as if there are multiple carriers going into or on the verge of liquidation.  Therefore, this case is important if you are a codefendant on a cumulative trauma case with a carrier that is border line insolvent.

The applicant alleged a cumulative trauma against his employer. The case went to hearing and the Workers’ Compensation Judge (WCJ) issued a Findings and Award and Opinion on Decision. The WCJ found the applicant 100% disabled.  During the period of the cumulative trauma the employer was insured by two insurance carriers.

The WCJ did not issue a joint and several award, but apportioned between the carriers. The WCJ apportioned 75% of the liability to California Compensation and 25 % of the liability to Golden Eagle.  California Compensation was ordered to pay and administer the award and seek contribution from Golden Eagle.

California Compensation failed to pay portions of the award. Applicant then sought multiple penalties for California Compensations failure to pay. California Compensation then became insolvent. It was placed in liquidation. The California Insurance Guarantee Association (CIGA) assumed control of the cases being administered by California Compensation.

The insurer who is primarily responsible for payment of an award is solely responsible for penalties that result from nonpayment of the award.  They are not entitled to contribution from the codefendant who was not ordered to pay.

In Carter v, WCAB (1990) 217 Cal.App.  3d 1359, it was decided that CIGA was liable for penalties for acts that occurred before the carrier became insolvent This case apparently involved a specific injury.

This case involves a cumulative trauma. Therefore, Insurance Code Section 1063.1 ©(9) comes into play.  Since there is more than one carrier Golden Eagle now has to pay the underlying benefits. CIGA would be dismissed pursuant to Insurance Code section 1063.1 ©(9). Therefore, it would appear Golden Eagle is left holding the bag. Golden Eagle will then be responsible for paying the penalty that California Compensation created by not paying timely. It would appear there is no way to alleviate this problem except assuming liability and administering an award in every situation when a carrier feels the other carrier may be on the verge of insolvency.


Failure To Pay Interest On Not A Separate Penalty

The Court of Appeal decide that when an employer makes a late benefit payment, that does not include interest for that late payment, only one Labor Code section 5814 penalty will be awarded.

The applicant sustained an industrial injury that resulted in 100 percent permanent disability award. The applicant was to be paid $224.00 per week for life. The defendant was to receive a third-party credit for $107,000. The employer did not have to make compensation payments until the third-party credit was exhausted.

The applicant notified the carrier the third-party credit was exhausted.  The carrier did not make the first permanent disability payment until six weeks later. The carrier included a retroactive payment that did not include interest.

The applicant sought two separate penalties. One penalty was for the late payment of permanent disability. The other penalty was for not including interest in the late retroactive payment.  The Workers’ Compensation Judge (WCJ) found the six week delay unreasonable and assessed a 10 percent penalty. The WCJ assessed a second 10 percent penalty for failure to pay interest at the time the retroactive payment was made. The defendant filed a Petition for Reconsideration which the Workers’ Compensation Appeals Board (WCAB) denied.  The appellate court analyzed the case law regarding multiple penalties. The court determined that there was no prior penalty awarded in this case. They reviewed Moulton v. WCAB (2000) 84 Cal. App.4th 837 and Soto v. WCAB (1996) 46 Cal. App.4th 1356 to determine that interest and installment payments relate to the same class of benefits. Therefore, only one penalty should be awarded.

The court analyzed that the late payment here was really a single act of misconduct. They indicated it would be unfair to penalize the employer twice for the single transaction. Moreover, they made the proper analogy. If one employer never made any payment that employer would only incur one penalty. This employer would incur two penalties for not paying the interest when making the retroactive benefit payment. This would not be fair. It might deter the employer from paying voluntarily and might encourage the employer to wait to pay until there was an award. Thus, this employer could be treated more harshly than an employer who made no payment at all. If there were two penalties it might also encourage an employer to wait until an award was made because interest is not due until a payment is made. Therefore, there is only one penalty under these set of facts.


“Special Risk” Exception To The Going And Coming Rule

The Workers’ Compensation-Appeals Board (WCAB) recently issued an Opinion and Decision After Reconsideration (En.Banc) defining a good faith personnel defense in a psychiatric case.

The applicant was a salesman and was assigned a territory with his employer. Before taking a vacation/leave of absence the applicant filed a workers’ compensation claim for orthopedic and psychiatric injury. The applicant alleged his supervisor harassed and discriminated against him.

At the trial AOE-COE was raised as an issue. The defense of a good faith personnel action pursuant to Labor Code section 3208.3 (h) was raised.  The only witness at the hearing was the applicant. The matter was taken off calendar for further medical and then another hearing took place in which, the applicant’s supervisor testified.

The Workers’ Compensation Judge (WCJ) found the psychiatric injury compensable and determined there was no good faith personnel defense. Thus, this is the decision on appeal.  The first issue to decide in a psychiatric case is whether actual events of employment are involved in the allegation. This is not a medical issue and cannot be decided by medical opinion. This is a legal/factual determination to be made by the trier of fact, the WCJ.

The next determination is whether these actual events were the predominant cause of the psychiatric injury. This is a medical determination. This requires competent medical evidence. Labor Code section 3208.3 states the causation threshold is either (a) predominant as to all causes combined or(b) substantial cause where the injury resulted from a violent act. Predominant as to all causes was not defined in the code, but judicially interpreted to mean that the work cause was greater than 50% of all causes. Substantial cause is defined in the Code as at least 35-40% of all sources combined.

If the foregoing are found then the WCJ must determine whether the actual events of employment were personnel actions. If so, it must be determined whether they were lawful, nondiscriminatory and in good faith.  This is a legal/factual determination to be made by the WCJ, not the psychiatrist. This opinion cites other cases for guidelines in making this determination.

Finally, if there is a lawful, nondiscriminatory, good faith personnel action there must be medical evidence that such personnel actions were a substantial cause (35 to 40% of the injury). The physician must first determine if the actual- events of employment were greater than 50% of the cause of injury. The physician must then determine whether personnel actions were a substantial cause (35 to 40%). The WCJ must then articulate all of the findings addressing all the issues in the decision.


Applicant Can Change Treating Doctor After F & A

This case involves an Opinion and Decision After Reconsideration (En Banc). The Workers’ Compensation Appeals Board (WCAB) believed the issue was one that was important enough to require a decision of the Board.

Applicant sustained an industrial injury. Applicant was declared permanent and stationary by his treating doctor. The doctor provided for chiropractic care on an as- needed basis. The doctor indicated that the applicant would need continuing future medical treatment.

The parties entered into a Stipulation with Request For Award that provided for need for medical treatment.

After the stipulation was approved the applicant attempted to get some chiropractic treatment. The applicant went to a new treating doctor. The defendant denied treatment on the basis that the treatment was for a nonindustrial condition and not the responsibility of the defendant.

An expedited hearing on the issue of entitlement to medical treatment was held. The Workers’ Compensation Judge (WCJ) found the applicant was entitled to further medical treatment and a new treating physician. The defendant filed the petition for reconsideration that prompted the opinion in this case. The defendant contended the applicant had to go back to the original treating physician that precipitated the Stipulation with Request for Award.

The WCAB reviewed Tenet/Centineh Hospital Medical Center v. WCAB (Rushing) (2000) 65 CCC 477, where the court determined that the applicant had to return to the primary treating physician. However, the Board determined that was when the applicant was released from further care and a dispute arose as to treatment.

Here the parties stipulated there was need for medical treatment. They indicated that there was no need to object to the treating doctor as in Rushing.

The Board held that where there is an existing award for medical treatment, the applicant is allowed a reasonable change of treating physician without the necessity of doing an objection pursuant to Labor Code section 4061 or 4062. The applicant may exercise the right to a free choice of physician, subject to the standard of reasonableness.

When there is an award for continuing medical treatment, Rule 9785(b) is inapplicable. Thus, in this case the applicant was allowed a new treating physician.


Good Action Defined By WCAB

The Workers’ Compensation-Appeals Board (WCAB) recently issued an Opinion and Decision After Reconsideration (En.Banc) defining a good faith personnel defense in a psychiatric case.  The applicant was a salesman and was assigned a territory with his employer. Before taking a vacation/leave of absence the applicant filed a workers’ compensation claim for orthopedic and psychiatric injury. The applicant alleged his supervisor harassed and discriminated against him.

At the trial AOE-COE was raised as an issue. The defense of a good faith personnel action pursuant to Labor Code section 3208.3 (h) was raised.  The only witness at the hearing was the applicant. The matter was taken off calendar for further medical and then another hearing took place in which, the applicant’s supervisor testified.

The Workers’ Compensation Judge (WCJ) found the psychiatric injury compensable and determined there was no good faith personnel defense. Thus, this is the decision on appeal.

The first issue to decide in a psychiatric case is whether actual events of employment are involved in the allegation. This is not a medical issue and cannot be decided by medical opinion. This is a legal/factual determination to be made by the trier of fact, the WCJ.

The next determination is whether these actual events were the predominant cause of the psychiatric injury. This is a medical determination. This requires competent medical evidence. Labor Code section 3208.3 states the causation threshold is either (a) predominant as to all causes combined or(b) substantial cause where the injury resulted from a violent act. Predominant as to all causes was not defined in the code, but judicially interpreted to mean that the work cause was greater than 50% of all causes. Substantial cause is defined in the Code as at least 35-40% of all sources combined.

If the foregoing are found then the WCJ must determine whether the actual events of employment were personnel actions. If so, it must be determined whether they were lawful, nondiscriminatory and in good faith.  This is a legal/factual determination to be made by the WCJ, not the psychiatrist. This opinion cites other cases for guidelines in making this determination.

Finally, if there is a lawful, nondiscriminatory, good faith personnel action there must be medical evidence that such personnel actions were a substantial cause (35 to 40% of the injury). The physician must first determine if the actual- events of employment were greater than 50% of the cause of injury. The physician must then determine whether personnel actions were a substantial cause (35 to 40%). The WCJ must then articulate all of the findings addressing all the issues in the decision.


Change Of Medical Control Within First 30 Days Denied

The applicant’s attempt to end the employer’s right to medical control within the first thirty days was denied.

The applicant suffered an injury at work when he was struck by a piece of wood. The same day the employer provided medical treatment. The doctor sutured a wound to the applicant’s forehead. The applicant also claimed he hurt his neck and back, but the physician found the complaints unrelated to the industrial injury. This physician also conducted a drug test that proved positive for marijuana The applicant returned to the doctor to remove the sutures. The applicant had to leave before the doctor could perform the procedure. The applicant returned and the office was closed.  The applicant removed his own stitches.

The applicant retained an attorney.  The applicant’s attorney selected a new Primary Treating Physician (PTP) within the first 30 days of the injury.

The Workers’ Compensation Judge (WCJ) found that the applicant acted in bad faith and tried to deny the employer the right to control within the first 30 days.

The Court of Appeal stated that when proper treatment is not provided within the first 30 days the applicant can self-procure treatment and seek reimbursement ( Zeeb v. WCAB, 67 Cal.2d496). They indicated this was not the case here and the applicant was trying to attain the presumption of correctness under Labor Code section 4062.9.

“If an injured worker reasonably declines treatment provided by an employer, the right to receive further compensation remains. Conversely, compensation is not payable when disability is caused, continued or aggravated by an unreasonable refusal to submit to medical treatment.” The court called the request for change of physician legal subterfuge.  The court determined that neither equitable estoppel or judicial estoppel applied in this case.

This court then refers the case back to the trial level for the judge to make determinations pursuant to Tenet/Centinela Hospital Medical Center v. WCAB (2000) 80 Cal. App.  4th 1041. The court was indicating that the primary treating physician in this case stayed with the employer selected doctor who eventually found the applicant permanent and stationary. The applicant may not have then been able to select a new treating without doing the AME/QME dance pursuant to Labor Code sections 4061 or 4062.

There is also an interesting discussion as to Labor Code sections 4050,4053, and 4054 which were not raised by the defense.


Once Discharged From Doctor You Must Comply With 4061 And 4062

Another case has followed in the footsteps of Tenet/Centinela Hospital Medical Center v. WCAB 65 CCC 477.

The applicant injured his head, neck, and back. The industrial injury aggravated his Tourette’s syndrome.  The treating doctor found the applicant permanent and stationary with the need for no further treatment or evaluation. The treating doctor believed the Tourette’s syndrome was aggravated by the industrial injury but had resolved.

The applicant changed treating doctors but did not comply with the requirements of Labor Code sections 4061 and 4062. The defendant got a neurological qualified medical exam in rebuttal.

The WCJ allowed the change of treating physician’s by the applicant and the WCAB upheld this.

The appellate court looked at Labor Code sections 4060; 4061; 4062; 4062.9; and Section 9785.

The treating doctor’s presumption will apply only where there is a preponderance of medical opinion indicating there is a different level of impairment than the treating doctor determined.

In this case since the treating physician discharged the applicant.  The applicant was precluded from choosing a new treating physician under section 9785 if he did not comply with Labor Code section 4062 (a). The first treating doctor was entitled to the presumption under section 4062.9 Further, the appellate court indicated the defendant did not lose the treating doctor’s presumption when they obtained a neurological QME. Their reasoning was that this report was a rebuttal to the applicant’s failed attempt to change treating physician and was not a rebuttal to the true primary treating physician.

The court stated that “after treatment is concluded, the right to choose a new treating physician is limited. Read in the light of the statutory and regulatory scheme as a whole, section 4600 does not allow an employee to select a new treating physician each time he or she is discharged from treatment and disagrees with the prognosis: unless and until it is determined that there is need for continuing treatment, a new primary treating physician may not be selected.”

The question not answered by this case is when the treating physician uses the one page check off form to the carrier with a disability status, will this suffice to trigger 4061 and 4062? This is yet to be determined.


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