Appellate Case of the Quarter: Adventist Health v. WCAB (Fletcher)

Wednesday, February 13, 2013 | 0

When an applicant entitled to future medical care under California Worker’s Compensation laws moves out of state, provision of treatment often poses a problem. Finding physicians who will treat such applicants can be especially difficult. In these circumstances, often applicants begin to self-procure unauthorized treatment and incur out of pocket expenses, for which they expect reimbursement. Are they entitled to such reimbursement?

The answer, based on Adventist Health v WCAB (Fletcher) (2012) 211 Cal. App. 4th 376, 77 Cal. Comp Cases 935, would appear to be that they are not.

Evelyn Fletcher, undisputedly in need of medical care, moved to Maryland and obtained authorization to see a primary treating physician, Dr. Malik, there from the defendant. Unfortunately, Dr. Malik did not comply with the reporting laws of the California Worker’s Compensation system. Upon his repeated failure to report, defendant filed a petition and complaint with the Administrative Director, requesting that applicant be ordered to select a new primary treating physician. This order was granted without objection, leaving the applicant without a primary treating physician as she was unable to find anyone else willing to accept her case in Maryland.

A willing treating physician, Dr. Wasserman, was eventually found but the applicant did not wish to see him, having had a bad experience with him in the past. Defendant insisted that applicant return to Dr. Wasserman, which she did on a temporary basis. These visits resulted in two very unflattering reports from Dr. Wasserman’s office regarding the applicant. Subsequent to these reports, applicant decided to return to Dr. Malik’s office without authorization, see one of his associates and pay out of pocket. She then demanded reimbursement for the out of pocket expenses.

Judge Samuel of the Sacramento WCAB heard this case and, in light of these facts, ordered not only that applicant be reimbursed for her out of pocket expenses but also ordered that the reports of Dr. Wasserman not be forwarded to whomever became the applicant’s next primary treating physician. Defendant filed for Removal and, upon its rejection, took up a writ of review.

The Court annulled the decision. It was noted that the Legislature has created a highly regulated compensation system for injured workers with the twin goals of providing prompt medical treatment and containing costs. To achieve these objectives, the WCAB must enforce the rules established by the Legislature and is “without authority to exercise discretion in the name of compassion or expediency.”

In the case at bar, the Court noted, the applicant “flaunted” the administrative order by returning to Dr. Malik and “more significantly, by seeking treatment from providers who failed to submit treatment plans or medical records, Fletcher denied Adventist the ability to comply with utilization review” and monitor the applicant’s treatment.

The most interesting part of this case, obviously, is the judicial language addressing the WCAB’s departure from the legislative structure for the provision of medical treatment – that the WCAB is without authority to depart from this structure in the name of compassion and expediency. That language should prove to be useful outside the confines of the facts of this particular claim.

Finally, as an aside, the court noted that the judge’s order striking the reports of applicant’s temporary primary treating physician, Dr. Wasserman, because they were unflattering was “novel” and that the reports containing important medical information that had to be part of any medical record must be sent to subsequent physicians of the injured worker.

Syed Masood is an attorney in the Chico, Calif., office of Grancell, Lebowitz, Stander, Reubens and Thomas. This column was reprinted with permission from the firm's quarterly newsletter.