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.

Case: Orodorica V. W.C.A.B. (3/14/01)

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

Newsletter Sign up

Workers Compensation Feed

Recent Newsletters