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.

Case: Holland V. WCAB, Reliance Steel and Aluminum

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

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