State Supreme Court Rules on Applicant Attorney Fees

Tuesday, May 12, 2009 | 0

By Michel LeClerc

On May 11, 2009, the California Supreme Court held that applicants who successfully overcome denials of medical treatment are not entitled to attorney fees under Labor Code section 4607.

In Smith v. WCAB, the injured worker had an award of medical treatment. Employer denied a request for epidural injections. An AME ultimately determined that the injections were reasonably required to cure or relieve from the effects of  the industrial injury.  The injections were then authorized.

Applicant filed a petition for attorney fees under Labor code section 4607 that provides for an attorney fee when defendants unsuccessfully petition to terminate an award of medical treatment.  The WCJ and the WCAB denied the request on the grounds that defendant had not instituted proceedings to terminate an award of medical treatment as required by Labor Code section 4607.

The Court of Appeal reversed the WCAB and held that applicant could recover attorney fees.  Per the Court of Appeal: "If attorney fees are available to counsel who oppose formal petitions, they should be available to counsel who must initiate proceedings to challenge informal denial of care."  The California Supreme Court granted review of this decision and has now reversed it.

To summarize the Supreme Court: it found a significant distinction between a petition to terminate a medical award in its entirety (that seeks to take away all rights of treatment) and challenges to a particular course of medical treatment (that do not question or attack the underlying award of medical treatment).  As the plain language of Labor Code section 4067 only applies to petitions to terminate a medical award, the Court saw no reason to extend the plain language of this statute to disputes over medical treatment, particularly when Labor Code section 5814.5 already allows for an attorney fee when medical treatment is unreasonably delayed following an award.

THE BOTTOM LINE:

Applicant is not entitled to an award for attorney fees under Labor Code section 4607 for successfully overcoming a utilization review denial of medical treatment. That code section is limited to unsuccessful petition to terminate an award of medical treatment.  While an applicant may be entitled to an attorney fee for overcoming a post-award denial of treatment under Labor Code section 5814.5, that section requires a WCAB finding that the denial was unreasonable.


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Michel LeClerc is a partner in the law firm of Hansen LeClerc LLP in Redding, Calif.
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