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WCAB Powerless to Redact PTP Reports; Make Defense Pay for Non-Report Treatment

November 30th, 2012

Sit back, dear readers, and hear a wonderful story – one that will warm your hearts and soothe your hurts after another week of the senseless mayhem that is California workers’ compensation.

Imagine a worker sustaining an injury and receiving an award for future medical treatment.  As the award is often the end of the contest for many defendants, it was just the beginning for the worker’s self-insured employer.

Years of litigation would follow, disputing what was reasonable and necessary at every step.  The injured worker, representing herself, regularly shirked procedure and regulation alike, increasing the chaos involved.

During this non-stop rampage of workers’ compensation treatment battles, applicant, defendant’s attorney, and the workers’ compensation Judge became well acquainted with each other.  Meanwhile, applicant switched her primary treating physician again and again (by her choice because she wasn’t happy with the physician, and then by the actions of the defense because her preferred physicians were not complying with reporting requirements).

After applicant reluctantly returned to her old PTP for a couple of visits, she went AWOL and began treating with the physicians that had been administratively removed for not providing timely treatment reports.

The WCJ eventually came up with a solution to the problem – he ordered defendant to reimburse applicant for self-procured treatment with the administratively removed physicians, and also ordered defendant to help find a new primary treating physician that would accept a workers’ compensation patient and could keep to the reporting requirements.  Additionally, the WCJ ordered that the reports of the treating physician applicant so despised and disagreed with be redacted, so as to prevent the disputes of the past from poisoning the treatment relationships of the future.

So defendant was faced with the prospect of paying for physician visits and treatment which it could not review or monitor, and wasting the money paid for the treatment received by applicant’s previous primary treating physician.

Naturally, defendant had a problem with this – and decided to appeal.  The Workers’ Compensation Appeals Board decided to let the matter stand as it was and denied defendant’s petition.  Then, something miraculous happened – the Court of Appeal chose to grant defendant’s petition for a writ of review, and ordered the WCJ’s order rescinded.

With respect to reimbursement, the Court of Appeal correctly noted that “[t]he WCAB, by denying the petition for reconsideration, acted without authority when it condoned [applicant’s] return to the same office that had been administratively removed.  We agree with [defendant] that she should not be allowed to circumvent a proper and valid order by seeking treatment [with physicians who have not] complied with reporting requirements.”

With respect to the redacted reports, the Court of Appeal held that the WCAB does not have the power to remove the reports of a primary treating physician from the record, even in complicated cases or in cases where there is an ongoing feud between employee and physician.

So, what does that mean for your weekend?  For one thing, this case should send a clear message to the treating physicians out there that think the title “Dr. Fancypants” means they don’t have to issue timely and complete reports… the defendant might have to foot the bill, but it always retains the right to monitor the course of treatment and challenge it for reasonableness and necessity.  And even Dr. Fancypants has dry-cleaning bills to pay.

Additionally, the treating physicians’ reports stick to the record like white on rice.  Just because a treating physician gives the applicant a diagnoses that he or she isn’t happy with (ranging from “you can go back to work” to “you’re addicted to opioids.”)  So while the applicant forum shops for new treating physician every time the current PTP gets wise to the scam, the record grows and grows.

The case? Adventist Health v. WCAB (Evelyn Fletcher), recently ordered published by the Court of Appeal.

An interesting side note – once an injured worker has received an award for future medical treatment, there is little incentive for an applicant’s attorney to represent the injured worker for purposes of enforcing the award.  In fact, applicants often have a hard time finding representation for the purposes of enforcement of future medical treatment, unless they are willing to settle out their future medical treatment award so an applicant’s attorney can cash it.  Perhaps the next round of reforms could allow injured workers to hire attorneys to enforce awards (on an hourly basis or so)?

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