The Second District Court of Appeal has ordered publication of its decision in Valdez v W.C.A.B. which reversed the W.C.A.B. en banc ruling that medical reports obtained by applicants pursuant to Labor Code § 4605 were not admissible. Thus, the Court of Appeal decision now becomes citable authority on this specific issue. While the decision itself issued several weeks ago the initial decision not to publish the case was certainly puzzling. Like most observers on the defense side of the table, I find the decision disturbing and lacking in judicial understanding of the comprehensive workers’ compensation scheme of generating medical legal reports. However, this case clearly meets the criterion for publication and it should be no surprise that the request for publication was granted.[fn1]
In issuing its reversal of the W.C.A.B.’s en banc opinion, the Court of Appeal appears to have focused very heavily on the Labor Code § 4616.7 exclusion of challenges to the opinion of the treating physician within the MPN. Indeed it its opening paragraph, the Court only addresses the limitation on obtaining medical reports under that section:
“A divided Workers’ Compensation Appeals Board (WCAB) concluded that a medical report is inadmissible if it has been prepared by a person who is not part of a medical provider network established pursuant to Labor Code section 4616 et seq. We granted the petition for a writ of review filed by the employee, Elayne Valdez, because of the importance of the issues raised by the parties. We conclude that the rule of exclusion laid down by section 4616.6 applies only when there has been an independent medical review performed under the authority of section 4616.4. We therefore annul the decision of the WCAB and remand with directions for further proceedings that are consistent with this opinion.”
Part of the problem with the Court’s analysis is that it is reversing a holding that is different from what the W.C.A.B. made. In its initial decision the use of Labor Code § 4616.4 was part of the analysis of why the W.C.A.B. excluded the reports of the applicant’s 4605 physician’s report but certainly not the entire reason. In particular in its last opinion affirming the initial holding, the W.C.A.B. made it clear that it was not relying solely or even predominately on Labor Code § 4616.4 and it discussed the entire scheme for generating medical legal reports. While the Court of Appeal provides lip service to this discussion, it appears to not really understand the W.C.A.B.’s discussion of the medical legal reporting process. Instead the Court engages is some circuitous logic and ignores some of the significant statutory language to arrive at its conclusion.
The language ignored by the Court is significant. Labor Code § 4605 provides:
“Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires.” (Emphasis added)
Court also cites the well know judicial admonition that
“…While every word of a statute must be presumed to have been used for a purpose, it is also the case that every word excluded from a statute must be presumed to have been excluded for a purpose.”
The Court notes the rights of the parties in Labor Code § 4062.3 to forward treating physician reports to a QME and somewhat circuitously concludes submission of treating physician reports to the QME means such reports are therefore admissible before the W.C.A.B. :
The statutory scheme does not exclude from consideration medical reports prepared by non-MPN physicians, but in fact provides that medical reports prepared by the employee’s treating physician may be submitted to the qualified medical evaluator. There is no statutory requirement that the employee’s treating physician be part of the employer’s MPN.
The Court fails to note the distinction in Labor Code § 4605 that the employee is entitled to have “examining or consulting” physicians at the employee’s own expense. The statute makes no mention of “treating physicians” at the employee’s own expense. Given the language in Labor Code § 4600, 4061 & 4062 referencing admissibility of “treating physician” reports it is difficult to conclude that the Legislature overlooked the significance of the difference between the language in the two statutes. Certainly one would expect, given the efforts to provide a comprehensive system where medical legal reports challenging the PTP opinion are to be obtained using specific procedural steps; the Court’s allowance of an injured worker to sidestep this process makes little common sense.
It will certainly be interesting to see if this process becomes widely used to circumvent the reporting procedures under Labor Code § 4060 et seq. It is certainly questionable whether most injured workers who are forwarded to such out of MPN physicians by their attorneys are aware that they are responsible for payment of the doctor’s bills and they should be carefully questioned at deposition to make certain they are aware of the obligation and that it is likely to be considered a lien against their compensation benefits. The applicant should also be questioned as to whether they have made any payments, intend to make payments or have made any arrangements for payment for such self-procured treatment.
Defendants also need to be cognizant that the physicians selected by the applicant (applicant attorney?) to provide “treatment” under Labor Code § 4605 are entitled to be paid and as defendants will not be obligated to make such payment, the only available funds may be the employee’s permanent disability benefit. Where a physician has filed a lien claim for such treatment, the defendant should be very wary of settlement of the PD award without confirming the consulting or examining physician’s bill will not pop up as a potential liability with arguments the defendant should have reserved sufficient PD benefits to see that the physician should be paid. Under NO circumstances should defendants agree to “pay, adjust or litigate holding applicant harmless” on such liens. This language is likely to result in imposition of liability on the employer/carrier for the treatment bills
It is likely this case will be appealed to the California Supreme Court. As with any appeal to the Supreme Court, the issue must catch the court’s attention as an important one, however we can always hope that the Court will give some consideration to an appellate decision that reverses and en banc decision of the W.C.A.B. Even should the Supreme Court decline to review this issue, it does not necessarily have to be considered as settled. Like several other important issues over the past several years, Courts of Appeal may very well different and a different district could arrive at the opposite conclusion in this matter. The W.C.A.B. and trial level judges will consider themselves bound by this decision. However, we have certainly seen competing decisions from different appellate districts in the past and this issue should be challenged further to see if a different appellate court might view the issue more in line with the W.C.A.B. majority opinion.
1. The standards for publication of a Court of Appeal decision are set out in Section 8.1105(b) of the California Rules of Court:
(c) Standards for certification An opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:
(1) Establishes a new rule of law;
(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
(5) Addresses or creates an apparent conflict in the law;
(6) Involves a legal issue of continuing public interest; …
The decision in Valdez v W.C.A.B. would appear to meet the criterion in (1), (3), (4), (5) AND (6) any one of which would support publication.
© Copyright 2012 Richard M. Jacobsmeyer. All rights reserved. Reprinted with permission.
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