Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd.

Citation193 Cal.Rptr. 157,34 Cal.3d 159,666 P.2d 14
CourtUnited States State Supreme Court (California)
Decision Date28 July 1983
Parties, 666 P.2d 14 BRAEWOOD CONVALESCENT HOSPITAL et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and Eugene Bolton, Respondents. L.A. 31683.

Dean Rogers, Schummer & Barton and Ross M. Barton, Van Nuys, for petitioners.

Leland D. Starkey and Pauline Nightingale, Los Angeles, for respondents.


Braewood Convalescent Hospital and its workers' compensation carrier, Cypress Insurance Company (hereinafter collectively referred to as employer), seek annulment of a decision of the Workers' Compensation Appeals Board (WCAB) awarding Eugene Bolton (applicant) compensation for (1) the cost of a self-procured, out-of-state weight reduction program, (2) temporary disability during his participation in that program and (3) expenses for his future participation therein. We conclude that the WCAB acted within its authority in making the challenged awards and will affirm its decision.


On January 6, 1978, applicant, while employed as a cook for employer, slipped and sustained injuries to his back and right elbow. At that time applicant, who had been chronically overweight since childhood, weighed approximately 422 pounds. Employer provided temporary disability benefits while applicant undertook treatment for his back injury.

Dr. Wells, applicant's personal treating physician, and two of employer's physicians joined in recommending that applicant lose weight in order to facilitate his recovery from his injuries. Applicant unsuccessfully had undertaken numerous weight reduction programs throughout his life, and at the time of the accident, was participating in a weight loss program; he claimed, however, not improbably, that this latest program "had not been too successful." None of the physicians recommended a specific weight reduction program, nor had the employer offered to pay for any such program.

Upon the recommendation of a close friend, who had participated successfully in a regimen of the Duke University Medical Center obesity clinic in Durham, North Carolina (hereinafter Clinic), applicant enrolled in the Clinic in February 1979. Applicant described the Clinic, which provides closely supervised, live-in treatment, as the "number one obesity clinic in the world." With the consent and support of Dr. Wells, applicant participated in the Clinic until November 1979. During that period he lost approximately 175 pounds. Dr. Wells, in a letter dated June 29, 1979, reiterated that it is "imperative [applicant] lose weight to obtain relief from his industrial injury ... [and that Dr. Wells] is in total agreement with the program and believes it is an integral part of his treatment."

By November 1979, applicant could no longer afford to continue with the Clinic. He returned to California and commenced work as a parttime security guard, continuing with a modified version of the Clinic program under local medical supervision. During the two month period from November 10, 1979, to January 8, 1980, he regained 16 pounds.

Applicant filed a claim for reimbursement of his Clinic's expenses, including requests for medical, lodging, special diet and transportation costs. The workers' compensation judge (WCJ) made awards, inter alia, for applicant's temporary disability prior to his enrollment in the Clinic, for the cost of the Clinic and for future participation therein, observing that reimbursement for the Clinic costs was justified by the employer's failure to provide applicant with any alternative weight reduction program.

Employer sought reconsideration, challenging the award for past and future self-procured medical treatment. On its own motion, the WCAB granted reconsideration of the WCJ's failure to award temporary disability benefits during the time of applicant's treatment at the Clinic. (See Lab.Code, § 5906; all further statutory references are to this code.)

After reconsideration, the WCAB affirmed the WCJ's award for self-procured past and future medical treatment and extended the temporary disability award to include the period of treatment outside California.

On appeal employer contends that the WCAB erred in awarding (1) reimbursement for the expenses of any self-procured weight reduction program, (2) temporary disability for the time that applicant spent in the Clinic, and (3) compensation for future medical treatment in the form of a continuing weight reduction program.


The appropriate standard of review in resolving the employer's challenges to the WCAB action is described in section 5952, which states, insofar as relevant: "The review by the court shall not be extended further than to determine, based upon the entire record ... whether: [p] (a) The appeals board acted without or in excess of its powers ... [p] (c) The order, decision, or award was unreasonable. [p] (d) The order, decision, or award was not supported by substantial evidence. [p] (e) If findings of fact are made, such findings of fact support the order, decision, or award under review. [p] Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence."

The term "substantial evidence" means evidence "which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion .... It must be reasonable in nature, credible, and of solid value ...." (Insurance Co. of North America v. Workers' Comp. Appeals Bd. (1981) 122 Cal.App.3d 905, 910, 176 Cal.Rptr. 365, italics in original, quotation marks omitted; Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54.) It has been said that "The substantial evidence test is not a vehicle for [a court] to superimpose its judgment upon that of the Board." (Mendoza v. Workers' Comp. Appeals Bd. (1976) 54 Cal.App.3d 820, 823, 127 Cal.Rptr. 173.) The court may not simply isolate evidence which supports or disapproves the board's conclusions and ignore other relevant facts which rebut or explain the supporting evidence, but must examine the entire record. (Garza v. Workmen's Comp. App. Bd. (1970) 3 Cal.3d 312, 317, 90 Cal.Rptr. 355, 475 P.2d 451; LeVesque v. Workmen's Comp. App. Bd. (1970) 1 Cal.3d 627, 637, 83 Cal.Rptr. 208, 463 P.2d 432; cf. Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 727, 175 Cal.Rptr. 626, 631 P.2d 60.) The board's findings on factual questions are conclusive if supported by substantial evidence. (Martori Brothers, supra.)

We turn to the merits.

1. Reimbursement for Self-procured Treatment

Is applicant entitled to reimbursement for his participation in a self-procured weight reduction program?

Section 4600 provides that, "Medical, surgical ... and hospital treatment, including nursing, medicines, [and] medical ... supplies, ... which is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer. In the case of his neglect or refusal seasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment. After 30 days from the date the injury is reported, the employee may be treated by a physician of his own choice or at a facility of his own choice within a reasonable geographic area."

Thus, the employer is given initial authority to control the course of the injured employee's medical care. (Voss v. Workmen's Comp. Appeals Bd. (1974) 10 Cal.3d 583, 588, 111 Cal.Rptr. 241, 516 P.2d 1377; McCoy v. Industrial Acc. Com. (1966) 64 Cal.2d 82, 86, 48 Cal.Rptr. 858, 410 P.2d 362.) Section 4600 requires more than a passive willingness on the part of the employer to respond to a demand or request for medical aid. (McCoy, supra, at p. 89, 48 Cal.Rptr. 858, 410 P.2d 362; Myers v. Industrial Acc. Com. (1923) 191 Cal. 673, 679, 218 P. 11.) This section requires some degree of active effort to bring to the injured employee the necessary relief. (Myers, supra.) Upon notice of the injury, the employer must specifically instruct the employee what to do and whom to see, and if the employer fails or refuses to do so, then he loses the right to control the employee's medical care and becomes liable for the reasonable value of self-procured medical treatment. (Voss, supra, 10 Cal.3d at p. 588, 111 Cal.Rptr. 241, 516 P.2d 1377; McCoy, supra, 64 Cal.2d at p. 86, 48 Cal.Rptr. 858, 410 P.2d 362; Draney v. Industrial Acc. Com. (1949) 95 Cal.App.2d 64, 67-68, 212 P.2d 49; County of L.A. v. Industrial Acc. Com. (1936) 13 Cal.App.2d 69, 74, 56 P.2d 577.)

It is a long accepted workers' compensation rule that the employer takes the employee as he finds him. (Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274, 282, 113 Cal.Rptr. 162, 520 P.2d 978; Ballard v. Workmen's Comp. App. Bd. (1971) 3 Cal.3d 832, 837, 92 Cal.Rptr. 1, 478 P.2d 937.) Thus, an employee who suffers from a pre-existing condition and is thereafter disabled by an industrial injury is entitled to compensation and reimbursement of medical expense, even though a healthy person would not have been injured by the event (Ibid.) This is so even though the specific treatment is for a nonindustrial condition which must be treated in order to cure or relieve the effects of the industrial injury. (Granado v. Workmen's Comp. App. Bd. (1968) 69 Cal.2d 399, 405-406, 71 Cal.Rptr. 678, 445 P.2d 294; Dorman v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 1009, 1020, 144 Cal.Rptr. 573; McGlinn v. Workers' Comp. Appeals Bd. (1977) 68 Cal.App.3d 527, 535, 137 Cal.Rptr. 326; 2 Hanna, Cal. Law of Employee Injuries and Workmen's Compensation, § 16.03, .) While such expenses, in order to be compensable, must be reasonably necessary to cure or relieve the effects of an industrial injury, the statutes do not require any finding of disability, temporary or...

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