Applicant Can Have Multiple Change Of Treating Doctors

An Appellate Court has recently ruled that an applicant can have as many change of treating physicians as he or she chooses. The employer only has control for the first 30 days and thereafter the applicant can designate a treating doctor and change to another physician at will.

This case was appealed in order to interpret Labor Code sections 4600 and 4601. The pertinent language in 4601 is that”… the employer shall tender the employee one change of physician.” (Emphasis added) Lara (the applicant) asked for a second change of physician under Labor Code section 4600. Section 4600 requires the employer to provide medical treatment necessary to cure or relieve the effects of an injury.

The Appeals Board and Appellate Court reasoned that 4600 governs when an applicant has elected his or her own physician. 4601 governs when the employer has control and limits the applicant to one change of physician only while the employer has control.  Once the applicant assumes control, the applicant is not limited in the number of changes of doctor that may be made. If the employee /carrier believes that the applicant has had to many changes in treating doctors or is doctor shopping the employer\carriers recourse is to petition the administrative director under Labor Code section 4603 or request a hearing before a WCJ.

The appellate court relied on three writ denied cases. While most practitioners have always believed these cases were not citable the footnote indicated that even though these cases have no stare decisis effect they are citable as to the holding of the Board. The appellate court then stated that the Board’s construction of statutes is entitled to great weight. The trouble is in a writ denied case all you get is a synopsis which may or may not be accurate.

The appellate court went on to state that the legislative changes in 1990 and 1993 did not change the existing law. The court further stated that it was not reasonable to conclude that the amendments in any way changed the law. They indicated that the 1990 amendments only made it explicit that the applicant could change physician within the first 30 days while the employer had control. As to the 1993 amendments the court indicated the same thing. “If the Legislature intended to change the employee’s right of free choice it would have done so.”

The court further determined that the withholding of the change in trailing physician was unreasonable in light of section 5814. Therefore, a penalty accrued. As we know with the recent Rhiner case the penalty went to the whole class of medical treatment.

If you object to the treating physician or the change of treating physician you have two possible remedies. You can file for a hearing before the WCJ or petition the Administrative Director.

Case: Ralphs V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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