There has been continuing confusion about the application of Labor Code §4600 and §4601. The question usually arises after the applicant has notified the employer of his/her desire to change treating doctors for the second time. Almost all employers are willing to allow one change. The confusion arises when there have been multiple requests for change of treating physician.

The Court of Appeal in Lara explained that Labor Code §4601 was to be used by the applicant when the employer still had control of the treating physician. The applicant is entitled to a one-time request for change of treating physician at any time. It should be noted that the employer provides the new treating physician.

Under Labor Code §4600, however, the applicant essentially has an unlimited right to change his/her treating physician. Once thirty days has elapsed from the date of the injury, the applicant can exercise complete control over who the treating physician will

Prior to the Lara case, there have been three cases decided on the issue with writ denied decisions. I think that the employer in the Lara case was more than aware of these prior decisions. I think that the employer was hoping to make new law which would assist all employers.

The fact of the matter is that an applicant wields tremendous power under Labor Code §4600. The treating physician now has a presumption of being correct. This means that all an applicant has to do is go to an attorney who is knowledgeable about the doctors in that particular area. The attorney can immediately refer the applicant to a doctor who continues to find the applicant TTD. Whenever the doctor does find the applicant permanent and stationary, the level of residual permanent disability most likely will be very high.

The Court in Lara was not sympathetic at all to the plight of the employer. The Court stated that, “moreover, if there is widespread abuse by employees exercising their right to choose a physician, it is a matter that can be brought to the attention of the Legislature”. I think that a change is in order. Surely, the present law serves only to give applicants in litigated cases an unjust advantage. To correct the matter, I think that only one change should be allowed, absent the agreement of the employer. I don’t think that such a restriction would be too Draconian for an injured worker to live with.

B&P §650 Applies to Medical Providers

egundo Wilfredo Amaya alleged that he injured his back and neck due to stress from a work-related continuous trauma dating from February of 1991 through June 18, 1992. On June 26, 1992, he filed a workers’ compensation claim. The claim was denied by California Casualty for the employer, Tavco, Inc.

Mr. Amaya responded to a television advertisement on or before June 12, 1992, by calling a toll-free number. The persons answering the telephone identified themselves as “Injury Central”. The applicant was later treated by Dr. Mitchell Kaufman, who worked for Neurologic Orthopedic Associates Medical Group (NOAMG).

The applicant settled his case with a Compromise and Release Agreement for a total of $750.00, with a Thomas waiver of rehabilitation. All other liens were settled with the exception of NOAMG.

On July 11, 1994, the case was submitted on the remaining lien. On December 22, 1994, workers’ compensation judge Jerold Cohn issued an Opinion on Decision. Defendants had argued that the lien of NOAMG should be dismissed due to a violation of Business and Professions Code §650. The defendants presented evidence showing that Primedex Corporation paid for the television advertisement and hired employees to operate “Injury Central”. Injury Central then referred all the inquiries directly to NOAMG. In turn, Primedex would receive a percentage of what NOAMG would receive from its medical billing.

Defendants argued that the activity of NOAMG and Primedex was a referral of a patient to a doctor for profit. This violated Business and Professions Code §650. NOAMG argued that Business and Professions Code §650 was only a civil remedy and could not be used at the Workers’ Compensation Appeals Board.

The WCJ denied defendants’ request to have all of NOAMG’s liens disallowed on the grounds of illegality because the WCJ thought that this was beyond his jurisdiction and power: “The remainder of the lien claimant’s claims for services are also contested on the theory that certain provisions of law (while not specifically precluding recovery) preclude recovery for same because the authorities cited preclude certain relationships amongst various entities, past, present, and future that lien claimant had relationships with.

“However, assuming the legality of the defense counsel’s citations, this WCJ does not find any authority for the proposition that the lien(s) should be disallowed because they are (arguendo) in violation of the Code sections and authorities defendant cites.

“Parenthetically, some authority other than a Workers’ Compensation Judge (Referee) may have authority to opine in support of the proposition propounded by defense counsel.”

Defendants filed a Petition for Reconsideration. The WCJ recommended that the Board accept the Petition for Reconsideration and review the question. The WCJ thought it important to have the Board’s opinion on the matter.

The Workers’ Compensation Appeals Board granted the Petition for Reconsideration. The Board found that, “We disagree with the WCJ that he was without jurisdiction to determine whether there was a violation of Business and Professions Code §650. Moreover, we are persuaded that a knowing violation of that Section would be a basis for denial of the remainder of NOAMG’s lien claim. Given the overriding public policy considerations of eliminating fraud in the workers’ compensation system, as evidenced by the recent enactment of Labor Code §3820, which specifically refers to Business and Professions Code §650, we believe that the WCJ has the authority to determine the issues relating thereto as raised by defendant in this case. The WCJ may not, of course, assess any of the civil penalties provided for, nor has defendant requested such relief, and any finding of violations to which civil penalties would attach would not be binding in subsequent criminal proceedings brought by the district attorney, given the higher standard of proof in those proceedings.”

The Board rescinded that part of the WCJ’s decisions involving the lien claim of NOAMG for services provided after June 18, 1992, and returned the matter to the trial level of further proceedings and such other development of the record as deemed appropriate by the WCJ. The Board further noted that its disposition should not in any way be regarded as determinative of the merits of the issues raised. On remand, each party will be allowed to present all documentary and testimonial evidence relative to the respective positions.

Segundo Wilfredo Amaya v. Tavco, Inc.; California Casualty

Case Number: AGO 08775

The Amaya case is significant in that the Board states that a lien can be disallowed by a WCJ if the WCJ finds that the lien claimant knowingly violated Business and Professions Code §650. This particular issue most probably will be appealed. Obviously the jury is still out regarding the application of Business and Professions Code 650.

Apportionment to Preexisting Osteoarthritis Allowed

obert Thompkins claimed that he sustained two work-related back injuries. The first was on March 20, 1988. The second injury occurred on May 31, 1989. Mr. Tompkins also claimed to have sustained a continuous trauma injury to his spine and left hip for the period of employment from February 21, 1968 through May 31, 1989.

The parties agreed to use Dr. Alan Sanders as an AME. Dr. Sanders indicated that all of the back and spine injuries were work-related. However, with regards to the left hip, Dr. Sanders stated that 50% of the partial permanent disability was due to a nonindustrial condition. Specifically, Dr. Sanders stated that 50% of the disability was due to the natural progression of the applicant’s preexisting degenerative osteoarthritis of the left hip.

WCJ Frederick I. Goldstein rendered a Findings and Award which followed Dr. Sander’s recommendations. However, after the applicant filed a Petition for Reconsideration, Judge Goldstein rescinded the Joint Findings and Award. He issued a new Findings and Award which found that all of the injury was industrially-related. The WCJ found that Dr. Sanders’ apportionment was invalid because: (1) Dr. Sanders had improperly apportioned disability to preexisting pathology; and (2) Dr. Sanders was not sufficiently certain when and to what degree applicant’s preexisting arthritis would have become disabling absent industrial injury.

The defendant sought reconsideration of the new F&A. The Workers’ Compensation Appeals Board granted reconsideration. The Board allowed apportionment based upon Labor Code §4663. The defendant sought reconsideration of the new F&A. The Workers' Compensation Appeals Board granted reconsideration. The Board allowed apportionment based upon Labor Code §4663. In case of aggravation of any disease which exists prior to compensable injury, Labor Code §4663 provides that an employer is only liable for portion which is "reasonably" attributable to an industrial injury.

The Board quoted Dr. Sanders. Dr. Sanders stated, “With regard to the patient’s left hip, I would indicate that this is a combination of his work activities over the years with this company, as well as due to the underlying degenerative osteoarthritis which would be expected to be symptomatic and disabling at this time absent any industrial exposure...I would apportion the remaining half of the patient’s present complaints, symptoms and disability to the natural progression of the underlying degenerative osteoarthritis which would be expected to be symptomatic and disabling to some point at this time absent the industrial exposure.”

A Petition for Writ of Review was filed by the applicant. This was denied on September 1, 1995.

Robert Tomkins v. WCAB, 60 CCC 903

Editor’s Note: This case is particularly interesting in that there did not appear to be any evidence of symptomology presented at time of trial. The Board relied upon Dr. Sanders’ assumption that the applicant was in fact symptomatic given the nature of his disease. This is particularly important in that in many cases, where there is an issue of arthritis or prior injury, there is little or no direct evidence that the applicant was experiencing any symptomology due to the nonindustrial medical problem. In this case, Dr. Sanders was allowed to testify to what he would expect to exist given the nature of the injuries involved.