Common Adjusting Mistakes, Part 3: Treating

Sunday, September 28, 2003 | 0

This is the third in a series on common mistakes made by claims examiners in the workers' compensation field. Our first article reviewed failure to adjust the TTD level after two years post injury. The second article looked at the improper use of Labor Code section 4050 evaluations. This article explores the hazards in denying an injured worker's request for a second change of treating physician.

This scenario will come up when the injured worker makes a request to change physicians a second time - after 30 days have transpired following an industrial injury.

In 1995 the Fourth Appellate District of California handed down Ralph's Grocery v. WCAB (Lara), 38 Cal.App.4th 820 (1995) which basically said that the only limitation to an injured worker's request to change treating physicians is that it be 'reasonable'.

The court does not define what reasonable is in the circumstance, but an examination of the facts in Ralph's Grocery gives insight.

Lara suffered admitted bilateral wrist injuries. She was temporarily disabled in 1993 and was treated by Dr. Scalone upon referral from Ralphs. She was discharged and returned to work in August 1993. In March 1994, she again became symptomatic, filed a notice of claim, and began treatment with Dr. Scalone. Dr. Scalone found Lara to be temporarily totally disabled and Ralphs commenced paying temporary disability benefits.

On April 7, 1994, Dr. Scalone reported Lara was seen entering his office carrying a small child and not wearing her prescribed splint and reported Lara stated that she could not wear the splint because she had to use her right arm to care for her children and that she was not taking her medication as directed. Dr. Scalone opined that absent noncompliance with medical recommendations her condition should have improved at least 50 percent by that time.

On April 12, 1994, Lara requested Kaiser Permanente (Kaiser) as a new treatment facility. Ralphs immediately authorized the change. Kaiser found Lara to be temporarily totally disabled for three weeks until June 20, 1994, and set an appointment for that date.

By a letter dated June 9, 1994, Lara's attorney requested a change of treating physician to Dr. Richard Braun indicating Lara did not feel she was receiving necessary treatment for her left extremity. Ralphs refused to authorize another change. Lara failed to keep her scheduled Kaiser's appointment and Ralphs temporarily discontinued paying temporary disability. By a 'fax transmittal sheet' dated July 6, 1994, Lara's counsel notified Ralphs he considered 'any refusal to authorize a new doctor as a refusal to timely provide treatment.' He further stated Ralphs could avoid a penalty by authorizing treatment by Dr. Braun.

On July 13, 1994, Lara returned to Kaiser and Ralphs immediately reinstated disability payments and paid for Lara's interim period of disability. Shortly after her return to Kaiser, Lara returned to work on limited duty.

Lara sought a hearing on her right to change physicians and to receive a penalty for Ralphs's failure to pay temporary disability benefits and to provide medical treatment. The WCJ found that under existing law Lara could make unlimited changes of physicians, subject to the test of reasonableness. The WCJ declined to impose penalties under section 5814 because he concluded Lara's purported reason for seeking a change was 'flimsy, capricious and not supported by the evidence.' The Board granted reconsideration and imposed penalties.

On Ralph's petition the court of appeals, which concluded "the limitation of 'one-time change of physician' set forth in section 4601 was not applicable to Lara who was exercising her right to control her medical treatment and select her own physician. Under section 4600, Lara was entitled to her choice of physician and her request to change her treatment to Dr. Braun should not have been unilaterally denied."

The court also upheld the penalty that imposed by the Board on reconsideration.

The proper procedure to follow, even if it is believed that an injured worker is acting unreasonably in requesting a change of treating physician, is to grant the change, then bring the issue to the attention of the Appeals Board by either filing a petition with the Administrative Director or requesting a hearing before the WCAB.