New Case On Change Of Primary Treating Physician

A new court of appeals case that was not certified for publication may have added a new wrinkle to the Tenet/C.mtinela Medical Center v. WCAB{Rushing)(200Q) 80 Cal. App. 4th. 1.04.1 case. As you recall in that case when the applicant was considered permanent and stationary and mere was no need for continuing treatment the applicant could not change primary treating physicians.

These cases deal with Labor Code sections 4600, 4601,4602,’ and Adrninistrative Director regulation 9785.

In this case the applicant sustained injury to his head, neck, and back, in the course of employment. The employer selected a treating physician: The physician found the-applicant permanent and stationary.  The physician stated the applicant required no further medical .treatment or evaluation.

Applicant through his attorney then sought to get treated by another physician. Applicant’s attorney apparently did not object to the primary treating physician’s report or attempt to comply with Labor Code sections 4061 or 4062. The new physician found the applicant permanent and stationary and that the applicant’s industrial injury aggravated the applicant’s Tourette’s syndrome. This doctor concluded this would result in the applicant receiving lifetime medical care for the Tourette’s syndrome.

The original treating doctor was an orthopedist. The employer then .obtained a qualified medical examination in neurology to address the Tourette’s allegation.

The worker’s compensation judge (WCJ) found the second physician to .  be the primary treating physician that carried the presumption “of correctness pursuant to Labor Code section 4062.9.

The Court of Appeal reviewed not only the Tenet case’but also People v. King (1993) 5-Cal.4fh 59 and Lundgren v. Deukmejian, (1988) 45 Cal 3d 727.

The court looked at the language of .9785, subdivision (b). They seemed to indicate that when the physician discharges the applicant the applicant cannot designate a new treating physician before the physician dispute is resolved They specifically state that “…after treatment is concluded, the right to choose a new treating physician is limited. Read in the light of the statutory and regulatory scheme as a whole, section 4600 does not permit an employee to select anew treating physician each time he or she is discharged from treatment and disagrees with’ the prognosis: unless and until it is determined that there is a further need for continuing treatment,”anew primary treating physician may not be selected”

Thus, it would seem the requirement of the applicant being permanent and stationary may have been alleviated by this case.

Case: F.P.S. Services V. W.C.A.B. (Antico)

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

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