Of Mountains and Molehills

Friday, May 2, 2008 | 0

By Richard "Jake" Jacobsmeyer

As most of those of you who receive these legal updates are aware, I rarely comment on any legal opinions unless the decision constitutes "citable authority."

Citable legal authority includes published decisions of appellate courts, the Workers' Compensation Appeals Board, en banc and significant panel decisions and writ-denied cases of the WCAB. Other cases, such as WCAB panel decisions and even the recently created designation of "significant noteworthy decisions" in Lexis are not really legal authority and difficult to justify for commentary because there are so many decisions, many of which depend very heavily on the specific facts of the case.

A search on Lexis for all of the cases listed under all of these categories for the past year creates a total of 620 reports. Of this number slightly over half represent citable authority with the remainder being WCAB panel decisions that carry no real legal significance but can, on occasion, provide some persuasive arguments for how the WCAB might respond on a specific issue. Five or six similar opinions might even be considered a trend.

And this listing does not include the overwhelming number of WCAB panel decisions. The WCAB website states that in 2007 there were over 4,100 petitions for reconsideration, the vast majority of which at some point have a three-member panel decision issued. (Some cases may not have a panel decision because a workers' compensation judge can rescind an award within 15 days of a Petition being filed and the WCAB does not get to issue a decision in those files. There is no record of how often this happens but it is probably a small fraction of the total number of petitions filed). Recently even the WCAB panel decisions are available for review if one is willing to pay a fee for access to WorkCompCentral.

All of the above commentary is to demonstrate that there is a great deal of information out there but only a relatively small portion of the available reports of decisions actually are of legal significance. Sorting out the wheat from the chaff is part of what being an attorney is all about, but sometimes the sheer volume of information can make the task overwhelming. Sorting out the legal significance is particularly important in a milieu where there is a dearth of legally significant authority on a large number of issues and all of the participants in the system are hungry for some direction from the courts on a host of unresolved legal issues.

Reported on May 1 on WorkCompCentral is a case involving Labor Code Section 4605 with the heading "Applicants Can Pick Their Own Physicians Under 4605, WCAB Rules". So far so good; a WCAB panel did, kinda, make that holding, although not in a stare decisis ("the issue is decided" in Latin) decision as reported in the story. The decision is merely a WCAB panel ruling which has no binding effect on the WCAB or any of its judges except in the case where the decision issued. The commentary that follows the actual holding of the case is what I find interesting because it stretches out a very simple, very limited holding into what may very well be completely untenable legal positions with little or no justification.

The decision, correctly in my opinion, does provide that the employee in this case was limited to treatment paid for by the defendant within the defendant's medical provider network (MPN.) By implication, the employee has the right to obtain treatment from a physician of his selection (probably actually his attorney's selection) that the employee pays for. The WCAB properly acknowledged that it does not have the power to prohibit an injured worker from getting treatment where he/she chooses, but does have the power to determine the employer does not have to pay for that treatment. The applicant attorney makes the observation that, in his opinion, most employees will be able to obtain payment for the treatment as a result of flaws in the MPN notices.

Perhaps, perhaps not, we can all argue for days about how well most defendants are providing notice and the meaning of the WCAB decision in the Knight case. My experience is the most of the notices are quite adequate to bind the employees into their MPNs but opinions will differ on that issue. In this case the issue is decided, the defendant will not have to pay for the treatment.

What follows in the article is essentially the applicant attorney's view of what the consequences of the holding will be. He has constructed an entire legal sequence that he argues flows from the decision. Keep in mind that the WCAB decision only makes one finding and order, the defendant only has to pay for treatment obtained within the MPN. No other issues were decided. The applicant attorney argued in his petition for reconsideration that the reports of the Labor Code Section 4605 physicians are primary treating physician reports pursuant to ADR 9785 and therefore admissible before the WCAB. In effect the applicant attorney is making the argument that the implications of this decision allow the injured worker to pay for his own treatment and use the report of the "consulting or attending" physician to obtain all of the other benefits in the file including temporary total disability and and permanent disability. The applicant can effectively sidestep the medical-legal system and generate admissible medical legal reports. Such is the argument.

It is important to remember that the arguments presented by the applicant attorney are just that, arguments. These are not the holdings of the case (and even if they were, the level of authority is so low as to be meaningless). I frankly have serious doubts that the WCAB and higher courts are going to allow these arguments to create a loophole for an applicant to obtain medical legal reports outside the agreed medical evaluator/qualified medical evaluator system and at the same time restrict defendants from obtaining reports in a similar fashion.

A rational for addressing that issue is found in the approach by many defendants some years ago in trying to obtain admissibility of reports obtained under Labor Code Section 4050. After all the labor code allowed the reports to be obtained. Similarly the argument presented in Ward v Desert Hot Springs to use Labor Code Section 4064(d) as a means to get around the limitations in obtaining medical-legal exams will likely prove persuasive. In both situations the WCAB determined that the medical-legal system was the exclusive means for obtaining a medical legal report and the reports were not admissible before the WCAB.

Is the Labor Code Section 4605 physician a "primary treating physician"? I would argue not. Even though the injured worker may refuse to accept treatment through an employer's MPN, it is my belief that the physician designated by the employer or the physician selected thereafter by the employee, remains the employee's primary treating physician under Labor Code Section 4600 and ADR 9785.
I further believe that even if the injured worker refuses to treat with such physicians, Labor Code Section 4600 allows and employer to compel the injured worker to be evaluated by the physician pursuant to Vega v Taco Bell.

There is a strong argument that will allow the W.C.A.B. will draw a distinction between an "attending or consulting physician" and the primary treating physician under Labor Code Section 4600 based on the legislative intent and the need to provide a more leveled playing field in the development of evidence. If the applicant ends up prevailing on these arguments, the holdings regarding Labor Code Section 4050 and 4064(d) evaluations are seriously in jeopardy of being overturned also.
In the final analysis it is quite possible that the only thing that will come out of this decision is a big bill the injured worker will owe his physician for treatment and nothing else. In such cases it may well make very good sense to make certain to modify the commonly used "hold harmless" language in comprises and releases  to exclude treatment obtained by the injured worker under Labor Code Section 4605 in order to avoid disputes later on that defendants are liable to make payments on an indemnity basis even thought there is no direct liability.

And above all be careful to critically evaluate what you read to determine exactly how significant the information actually is.

Are you looking at mountains or molehills?

Richard "Jake" Jacobsmeyer is a defense attorney with Shaw, Jacobsmeyer, Crain, Claffey & Nix LLP in Oakland.