Applicant May Switch Primary Treating Doctor And Receive Presumption

This decision is a published decision from the Court of Appeal. The opinion deals with the presumption of the primary treating doctor after the applicant has been declared permanent and stationary by the original primary treating doctor.

This case involves an applicant who injured his left foot. The applicant was treated and released to regular work. Thereafter, the same physician found the applicant permanent and stationary. Future treatment was recommended in the final report. The applicant then became represented and objected to this report under Labor Code sections 4061 and 4062.

The physician the applicant selected first wrote a report as a Qualified Medical Examiner (QME)and was also selected as the primary treating doctor. This physician eventually made the applicant permanent and stationary and the matter came to hearing contesting who was the primary treating physician that carried the presumption under Labor Code section 4062.9.

The Workers’ Compensation Judge (WCJ) determined the original treating doctor continued as the primary treating doctor and the applicant was precluded from changing doctors under the doctrine enunciated in Tenel/Centinela Hosp. Med. Cntr. v. WCAB (2000) 80 Cal. App. 4th 1041 {Tenet). The Workers’ Compensation Appeals Board affirmed the WCJ’s decision and distinguished the case of Gee v. WCAB (2002) 96 Cal App. 4th 1418 (Gee).

The Court of Appeal agreed that Tenet applies. However, the applicant argues that it does apply and me applicant followed the decision by then objecting under 4061 and 4062. Here it was found that the new physicians first report was a QME report and not a pretext for changing primary treating doctors.The Court found the Gee case was applicable even though that opinion did not address Tenet.

The court indicated that before you could apply the presumption of the primary treating doctor the WCJ must first decide who is the primary treating physician. Therefore, the WCJ must first hold a hearing as to who has the better opinion the initial primary treating physician or the QME. Jf after the trial on that issue the judge chooses the QME, then there may be a new primary treating physician that would carry the presumption. A QME can be selected as the primary doctor. The applicant may be entitled to treatment before that decision is made.

Case: G A Y T O N v. W C A B ; L A U S D

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

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