Discharge By Treating Doctor Triggers 4061 & 4062

This appellate court held that where four things occur the provisions of section 9785, subdivision (b), and Labor Code section 4061 and 4062 apply to change primary treating doctors.  Where the original primary treating physician has found the employee permanent and stationary, released the employee to return to work, and prescribed no further doctor-involved treatment or visits, and discharges the employee this will trigger the use of the Qualified Medical Examiner.

The applicant sustained an injury to her right knee. The primary treating physician declared her permanent and stationary. Under the treatment section of his report the doctor indicated the need for home exercise.  Under future medical care the doctor indicated there would be need including possible surgery. There was no ongoing treatment.

The applicant was unrepresented and objected to the treating doctor report.  The employer provided the applicant with the three-physician panel per Labor Code section 4061 (d). The applicant did not choose a panel doctor but obtained an attorney. The attorney indicated that the applicant was obtaining a new treating physician.

At trial the defendant objected to the new treating physician. The Workers’ Compensation Judge (WCJ) allowed the presumption to the new treating doctor because the first treating doctor had allowed for future medical care.  The WCJ had concluded that the allowance of future medical meant the applicant had not been discharged from care. The Appeals Board agreed with the WCJ.

The court cited section 9785 (b). “If it is determined that there is no further need for continuing treatment then the physician who discharged the employee shall remain the primary treating physician. If it is determined that there is further need for continuing treatment, a new primary treating physician may be selected.” The court defined these terms. The terms continuing treatment and future treatment are not interchangeable. If there is no ongoing doctor-involved treatment a new treating physician will be disallowed. The court looked at Roacho v WCAB a writ denied case for authority.

The important consideration the court gave was that the applicant was discharged with no ongoing treatment. A future case may answer whether the one page check off the doctor uses to discharge the applicant will be sufficient to trigger 4061 & 4062.

Case: Tenet/Centin ELA Hospital Medical Center V. Rushing

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

Newsletter Sign up

Workers Compensation Feed

Recent Newsletters