Valdez: Have Opinion Need Case

Overlooked in the aftermath of the Supreme Court decision in Valdez v WCAB 2013 Cal. LEXIS 8902 (Cal.) issued on November 14, 2013, in which the Supreme Court and before that, the Court of Appeals, rejected the WCAB’s attempt to impose an exclusionary rule barring all medical reports obtained outside of the medical provider networks in every proceeding, is the fact that it was a denied claim, making this case an improper one for any such ruling.

Certainly, Labor Code §4616 does not apply to denied claims of injury. Medical treatment pursuant to §4616 is to be provided in general in accordance with Labor Code §4600 as is “reasonably required to cure or relieve the injured worker from the effects of his or her injury.” (Emphasis added) In the cross references below the text of this statute, Labor Code §3208 is cited for the definition of “injury”, which is “any injury or disease arising out of the employment…,” to indicate that §4616 applies to occupational injuries. It is ironic that the WCAB cited Knight v UPS 71 Cal. Comp. Cases 1423 (Appeals Board en banc opinion) (2006) in its Valdez decisions, considering that the WCAB itself excluded the denied claim in this case from its ruling and confined it to the admitted injury for the reason no doubt that §4616 is inapplicable to denied claims.

In its Valdez decisions released on April 20, 2011 and on September 27, 2011, the WCAB en banc rebuked the injured worker and her attorney in going outside of the MPN for these medical reports. See page 8 at lines 20-22 to page 9 at lines 1-4 of the April 20, 2011 decision, which are contained in WCAB’s exhibits on pages 201-202, and page10 at lines 17-22 of the September 27, 2011 decision, which is in the WCAB’s exhibits on page 324.

By what it wrote throughout these decisions, its words and their effects were carefully considered. It issued an en banc decision to render its consequences state wide and of utmost importance. To make its position properly maintained for this purpose, the WCAB was painstakingly clear to declare in its Order and  Decision after Reconsideration dated July 14, 2011 that it was done …”after again reviewing the entire record….”  (See page 301 at lines 21-22 of the Exhibits produced by the WCAB to the Court of Appeals to which the WCAB added its Certification). This was reinforced in its decision of September 27, 2011 on page 1 at lines 11-13 (See WCAB’s exhibits page 315) in which it had granted reconsideration “to further study the factual and legal issues in this case.”

Upon this basis, the WCAB called it an “admitted injury” on page x of its Verified (upon its oath) Response dated April 6, 2012, which was the answer to the question posed in the March 15, 2012 letter from the Court of Appeals. The fact that it was verified by a lawyer who is a responsible representative and employee of the Department of Industrial Relations/WCAB speaking for the WCAB and the Department makes it all the more serious.

The record does not support the WCAB’s allegations that it was an accepted liability claim applicable to the medical treatment in question. In any review of the “entire record,” the denial which was there could not have been missed. It was among the first pages of exhibits the WCAB produced for the Court of Appeals. In the beginning pages of these exhibits on pages 13-18,[fn1] the WCAB includes the employer’s Answer in which the injury is denied AOE/COE[fn2] on page 14. This Answer is the second exhibit in the first volume of the WCAB’s exhibits. It is among pleadings which were filed in the case in the public record at the WCAB.

The claim was denied all the way up to the Mandatory Settlement Conference when on April 27, 2010, the injury was admitted and the body parts were disputed. The Pre-Trial Conference Statement pursuant to §5502 (d) (3) shows that and is contained in the WCAB’s Exhibits on page 73 of pages 72-78, which is still relatively close to the beginning of these exhibits for the WCAB not to have seen it and to have recognized how this ruling would have been an improper retroactive application.

In the briefing to the Court of Appeals and the Supreme Court, the employer sought to do just that, which was to apply retroactively the exclusionary rule of §4616.6 to the medical treatment obtained during the period the claim was denied.

This is a highly dubious legal tactic and should have caught the WCAB’s eye especially with its assertions of reviewing the “entire record” and offering a Verified Response by its lawyer. Retroactive application is not justified. By filing and serving the denial of claim, the employer induced the injured worker to self-procure treatment outside of the MPN which the employer knew is intended for the treatment of admitted injuries. The employer is thus estopped to prevent the use of the medical reports so obtained.  Benner v Industrial Accident Commission 26 Cal. 2d 346 [10 Cal. Comp. Cases 110] (1945). See also Evidence Code §623 which provides “(w)henever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it.”

This doctrine of equitable estoppel has been used in California since Godeffroy v Caldwell 2 Cal. 489 (1852). In Cordova v 21^st Century Ins. Co. 129 Cal. App. 4th 89 (2005) at 106, the Court of Appeals stated “(i)n fact the doctrine of equitable estoppel is so engrained in American law it is arguably part of the concept of ‘fundamental fairness’ embodied in the due process clause of the Fourteenth Amendment and article 1, section 13 of our state Constitution.” (footnotes omitted)

This should not be confused with retroactive or prospective operation of a statute.  See Kleemann v WCAB 127 Cal App 4th 274 [70 Cal. Comp. Cases 133] (2005) which held that the change in the law of apportionment made in SB 899 applied retroactively but in Martinez v Terrazas 78 Cal. Comp. Cases 444 (2013), WCAB applied a statute prospectively. What distinguishes Kleemann from Valdez is that the underlying basis is not the same. The facts giving rise to apportionment one way or the other were the same in Kleemann both before and after SB 899 but in Valdez the difference was in the denial.

Regrettably, the WCAB was in a hurry to solve the lien problem and sought to eliminate a huge number of liens through its Valdez ruling without considering that this was not the record or statute to use for this purpose and that this was nothing more than judicial activism.  

Justice Kennard described judicial activism well in her concurring and dissenting opinion in Gantt v Sentry Insurance 1 Cal. 4th 1083 (1992) at 1102 “Courts should confine their decisions to issues actually raised on the facts of a case. The United States Supreme Court has explained its reluctance to issue ‘advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faceted situation embracing conflicting and demanding interests....’ (United States v. Fruehauf (1961) 365 U.S. 146, 157, 81 S.Ct. 547, 554, 5 L.Ed.2d 476.) Similarly, we have stressed that ‘[t]he rendering of advisory opinions falls within neither the function nor the jurisdiction of this court.’ ” (Coleman v. Department of Personnel Administration (1991) 52 Cal.3d 1102, 1126, 278 Cal.Rptr. 346, 805 P.2d 300.) Witkin has labeled this form of judicial activism, ‘Have Opinion, Need Case.’ (Witkin, Manual on Appellate Court Opinions (1977) § 85, p. 155.)’” (overruled on another point)”

There is another aspect to this activism. The WCAB stepped aside from its role as a truth finding tribunal and became the tool, an unsuitable tool, used unfairly for one side against the other and lost its neutrality. Have opinion, need case is how Valdez should be remembered.

Footnotes:

1. The pages from the WCAB’s exhibits were Bates numbered and start with 0000000. The zeros are left out for purposes of clarity.

2. Even though the defense attorney dated it “1/8/09” for an injury occurring on October 7, 2009, that is a typo. The proof of service is dated January 8, 2010.