25 Apr 2014

California: Judges and Jurisdiction - Where to Draw the Line

The primary purpose of the newly created Independent Medical Review (IMR) process is to review medical treatment (MT) disputes and issue determinations. SB863 added LC §4610.6(i) to the Labor Code, which states in pertinent part, “In no event shall a workers’ compensation administrative law judge, the appeals board, or any higher court make a determination of medical necessity contrary to the determination of the independent medical review organization.” Therefore, it was initially assumed that the WCAB would no longer be involved in the MT dispute resolution process.

However, it now appears that there may be situations where Workers’ Compensation Judges do have jurisdiction over this issue and where Workers’ Compensation Appeals Board (WCAB) intervention may be appropriate. See 8 CCR §10451.2(c)(1) and WCAB en banc decision, Dubon v. World Restoration, Inc; SCIF, (2014) 79 Cal.Comp.Cases 313.

In surveying this issue of a WCJ’s jurisdiction, the question arises as to what other “powers” might be granted to the WCAB and its WCJs and how should these powers be applied. Set forth below is a review of recent case law dealing with this issue.

Editor’s Note: Citations link to Lexis Advance.

1. Power to decide an injured worker’s intent as it relates to self-procured medical treatment (SPMT).

Clearly, the WCJ has the power to decide whether the injured worker should be reimbursed for SPMT under LC §4600(a) which provides in relevant part: “In the case of his or her neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment.”

However, if the employer has not neglected to provide medical treatment and has offered the injured worker medical care through a Medical Provider Network (MPN), then the employer will not be liable for the injured worker’s SPMT costs.

But what if employee received medical treatment he or she thought was being provided by the employer? Would the employee’s intent in that case be relevant to deciding whether or not he or she should be responsible for those SPMT costs? Does the WCJ have the authority to decide the employee’s intent in those situations?

Apparently, the answer is “yes,” according to the Noteworthy Panel Decision (NPD) of Mendez-Correa v. Vevoda Dairy, (2013), 2013 Cal. Wrk. Comp. P.D. LEXIS 171.

On 7.31.2008, Crispin Mendez was kicked in the face by a cow while in the process of milking said cow at the dairy where he worked. His employer promptly provided him with medical treatment through their MPN. Mr. Mendez continued to treat within the employer’s MPN until he moved to Southern California. At that time, he hired an attorney who directed him to use a non-MPN doctor. When it came time to settle his case, he requested that those SPMT expenses be reimbursed to him.

The issue went to trial and Mr. Mendez was denied reimbursement. In his Opinion on Decision, the WCJ explained that his review was limited to determining whether the employer refused to provide medical treatment per LC §4600. In fact, while Mr. Mendez lived in northern California he treated with the employer’s MPN. It was not until he moved to southern California that he treated outside the MPN, at the direction of his attorney. Since the employer clearly provided medical treatment per LC §4600, the WCJ found that the employee, and not the employer, was deemed liable for the SPMT costs.

The WCJ stated that it was within Mr. Mendez’ prerogative to obtain medical treatment outside of his employer’s MPN per LC §4605 which provides in relevant part: “Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires….” However, having treated outside the MPN, the employee was the one responsible for those costs.

Mr. Mendez filed a petition for reconsideration of the decision and the WCAB reversed the WCJ with regard to the employee’s liability for the SPMT costs. The WCAB explained that the employee’s “intent” was a critical component of this issue. If Mr. Mendez did not intend to treat outside of the MPN, then he should not be liable for those costs per LC §4605.

The WCJ never considered whether he had the authority to determine that issue. The WCAB explained that, in fact, the WCJ did have jurisdiction over that issue. In fact, WCJ’s often have quite a lot of leeway to resolve issues in order to further the Constitutional mandate to expeditiously deliver medical treatment and to “accomplish substantial justice in all (workers’ compensation) cases expeditiously, inexpensively, and without incumbrance of any character… (See Article XIV, Sec 4.)

More specifically, in Mendez, supra, the WCAB referred to LC §4903, which states in relevant part, “The appeals board may determine, and allow as liens against any sum to be paid as compensation, any amount determined as hereinafter set forth [herein].”

The WCAB explained, “[T]he authority to determine if a bill is the injured worker's obligation, under [LC §4605], is not the same as exercising jurisdiction under [LC §4903] to allow and determine a lien against compensation. Instead, a lien against compensation for medical treatment, that is subject to [LC §4903], is based upon the employer's obligation to provide reasonable medical treatment.” (Emphases in original.)

Clearly the medical services procured outside the MPN are not the responsibility of the employer since the employer had an MPN which served Mr. Mendez’ medical needs until he moved to Southern California. However, if Mr. Mendez did not intend to self-procure medical treatment, then he would also not be responsible for those medical treatment costs.

In this case, the WCAB found that the facts were such that the latter was true, since “there is no evidence that applicant intended to self-procure medical treatment from any lien claimants at his own expense pursuant to [LC §4605] following his move to Southern California…” (Emphasis in original.)

The WCAB relied on the case of Bell v. Samaritan Medical Clinic, Inc. (1976) 41 Cal.Comp.Cases 415, wherein the court held that the injured worker is not liable for medical bills associated with an industrial injury.

This holding was codified in Labor Code in LC §3751(b) as follows:

“If an employee has filed a claim form…, a provider of medical services shall not, with actual knowledge that a claim is pending, collect money directly from the employee for services to cure or relieve the effects of the injury for which the claim form was filed, unless the medical provider has received written notice that liability for the injury has been rejected by the employer and the medical provider has provided a copy of this notice to the employee. Any medical provider who violates this subdivision shall be liable for three times the amount unlawfully collected, plus reasonable attorney's fees and costs.”

It should be noted that although the WCJ does have a broad range of powers over all matters dealing with workers’ compensation proceedings, there are some limits to the WCJ’s authority and creativity with regard to reimbursement of SPMT costs, as was pointed out by the 3rd DCA in the case of Adventist Health v. WCAB (Fletcher), (2012) 77 Cal Comp Cases 935. In that case, the injured worker, Evelyn Fletcher, spent over 12 years and a great deal of personal time trying to obtain medical treatment. In a creative attempt to resolve these issues, and to help Ms. Fletcher move on with her life, among other orders, the WCJ turned a blind eye to adherence with the rules, and approved her request for SPMT costs.

In overturning the WCJ’s judgment, the 3rd DCA wrote,

“Having presided over the case for years, the workers' compensation judge was well acquainted with the players in this minidrama—a frustrated, and at times difficult, worker suffering chronic pain, a litigious employer, doctors in Maryland who did not file reports, others who enraged the injured worker, and the many others who would not provide treatment to an injured worker who was covered by the California workers' compensation system. The judge attempted time and time again to resolve ongoing disputes with audacious orders, including assigning a nurse case manager and providing psychological counseling….But in this case, the WCAB overlooked the transgression by allowing reimbursement for self-procured medical expenses incurred without following the rules of the system. The WCAB, however, was without authority to do so… No matter how well intentioned, the WCAB is without authority to allow Fletcher to flaunt not only the administrative order, but also the rules of the workers' compensation system.”

Bottom line: Judges need to be judicious when exercising their creative authority in resolving disputes. Set forth below are examples of additional powers available to WCJs, the exercise of which will help expeditiously resolve workers’ compensation disputes.

2. Power to appoint a regular physician per LC §§133 & 5701 when existing medical reports do not constitute substantial evidence.

Ditlevsen v. Gold Country True Value (2013), 2013 Cal. Wrk. Comp. P.D. LEXIS 483.

McDuffie v. Los Angeles County Metropolitan Transit Authority (2002) WCAB en banc, 67 Cal. Comp. Cases 138

Abdulmir v. Med-Pharmex, Inc. (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 405

But see Abel Ramirez v. Crown Wire Communications, Inc. (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 330, where WCAB held that appointment of regular physician per LC §5701 should only be made after all other options exhausted.

3. Power to subpoena PTP’s report when existing medical reports do not constitute substantial evidence.

Ibanez v. Ball Aerosol Specialty Company, (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 153

4. Power to issue protective orders & in camera reviews.

Hoagland v. County of Yuba (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 52

Borrayo v. Tobar Industries (2012) 2012 Cal. Wrk. Comp. P.D. LEXIS 10

5. Power to amend pleadings to conform to proof.

Gonzales v. KVS Transportation, Inc. (2013) 2013 Cal. Wrk. Comp. P.D. LEXIS 547

Conclusion

If there is an issue as to whether or not a WCJ may have jurisdiction and power to decide a particular issue, it is incumbent upon practitioners to attend the hearing with appropriate to citations to appropriate authority in support of the WCJ’s jurisdiction. This will reduce delay and avoid unintended consequences, such as that which occurred in the recent “Significant Panel Decision” of Kim v. BCD Tofu House, Inc; Cypress Ins, (2014) 79 Cal Comp Cases 140.

In Kim, supra, the WCAB confirmed the WCJ’s jurisdiction and power to conduct an expedited hearing on the issue of whether the employee should be required to treat within the employer’s MPN during the LC §5402(d) ninety-day delay period. However, by the time the WCAB issued their decision, the ninety-day period had expired and the issue was moot.

It certainly is not a guarantee, but when parties appear at a hearing with the correct citations to the Labor Code, regulations and case law allowing a WCJ the power to decide an issue, the probability of the hearing going forward on the issue is greatly increased.

_________________________________

Get the edge on recent case law developments

Designed especially for Lexis.com and Lexis Advance subscribers, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.

Purchase here (Format: PDF).