Once Discharged From Doctor You Must Comply With 4061 And 4062

Another case has followed in the footsteps of Tenet/Centinela Hospital Medical Center v. WCAB 65 CCC 477.

The applicant injured his head, neck, and back. The industrial injury aggravated his Tourette’s syndrome.  The treating doctor found the applicant permanent and stationary with the need for no further treatment or evaluation. The treating doctor believed the Tourette’s syndrome was aggravated by the industrial injury but had resolved.

The applicant changed treating doctors but did not comply with the requirements of Labor Code sections 4061 and 4062. The defendant got a neurological qualified medical exam in rebuttal.

The WCJ allowed the change of treating physician’s by the applicant and the WCAB upheld this.

The appellate court looked at Labor Code sections 4060; 4061; 4062; 4062.9; and Section 9785.

The treating doctor’s presumption will apply only where there is a preponderance of medical opinion indicating there is a different level of impairment than the treating doctor determined.

In this case since the treating physician discharged the applicant.  The applicant was precluded from choosing a new treating physician under section 9785 if he did not comply with Labor Code section 4062 (a). The first treating doctor was entitled to the presumption under section 4062.9 Further, the appellate court indicated the defendant did not lose the treating doctor’s presumption when they obtained a neurological QME. Their reasoning was that this report was a rebuttal to the applicant’s failed attempt to change treating physician and was not a rebuttal to the true primary treating physician.

The court stated 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 allow an employee to select a new 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 need for continuing treatment, a new primary treating physician may not be selected.”

The question not answered by this case is when the treating physician uses the one page check off form to the carrier with a disability status, will this suffice to trigger 4061 and 4062? This is yet to be determined.

Case: F.P.S. V. WCAB (Antico) 65 CCC1220

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

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