Ralphs Grocery Co. v. Workers' Comp. Appeals Bd.

• Decision Date: 25 September 1995
• Docket Number: No. D022610,D022610
• Citation: 38 Cal.App.4th 820,45 Cal.Rptr.2d 197
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 7516, 95 Daily Journal D.A.R. 12,834 RALPHS GROCERY COMPANY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Dawn R. Lara, Respondents.

Page 197

45 Cal.Rptr.2d 197

38 Cal.App.4th 820, 95 Cal. Daily Op. Serv. 7516,

95 Daily Journal D.A.R. 12,834

RALPHS GROCERY COMPANY, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Dawn R. Lara, Respondents.

No. D022610.

Court of Appeal, Fourth District, Division 1, California.

Sept. 25, 1995.

Heggeness & Sweet, and Nancy W. Lyons, San Diego, for petitioner.

Patricia S. Stephens, San Francisco, Frederick T. Dietrich, Greenbrae and Thomas J. McBirnie, San Francisco, Carlson and Thiessen, and Robert Thiessen, San Diego, for respondents.

NARES, Associate Justice.

Ralphs Grocery Company (Ralphs or the employer) seeks a writ of review after the Workers' Compensation Board (the Board) granted Dawn R. Lara's (Lara) petition for reconsideration and awarded her a 10 percent penalty under LABOR CODE SECTION 5814¹ for Ralphs' "unreasonable" delay in providing medical treatment and temporary disability benefits. Lara had requested a second change of physician. Ralphs denied the request and temporarily cut off Lara's temporary disability benefits based on its belief that section 4601, ² entitled Lara to only one change in physician.

The primary issue presented is whether Ralphs' actions were unreasonable. In this opinion, we conclude that section 4601 was inapplicable and that Lara was entitled to a second change of physician under section 4600. ³ Because we conclude Ralphs' interpretation of the statutes was unreasonable, we affirm the Board's order.

BACKGROUND

Lara suffered admitted bilateral wrist injuries while employed at Ralphs as a cashier. 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. Dr. Scalone further 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 non-compliance with medical recommendations her condition should have improved at least 50 percent by that time. ⁴

On April 12, 1994, Lara requested Kaiser Permanente (Kaiser) as a new treatment facility. Ralphs immediately authorized the change. By report dated May 31, 1994, a Kaiser doctor 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 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' failure to pay temporary disability benefits and to provide medical treatment. After hearing, the Workers' Compensation Judge (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." Under the circumstances, the WCJ concluded that to find Ralphs had unreasonably delayed would be "patently unfair." Since the WCJ decision, Lara has been treated by Dr. Braun.

Lara petitioned the Board for reconsideration contending it was error to find Ralphs did not unreasonably delay the payment of temporary benefits and the provision of medical treatment. The WCJ in his report and recommendation on petition for reconsideration discussed what he considered to be Lara's "false pretext" that Kaiser was not treating both wrists equally and concluded the real reason for the demand to change was that the doctors at Kaiser had released her to return to modified work ⁵ which Ralphs was willing to provide and she preferred receiving temporary disability. The WCJ concluded Ralphs was reasonable in delaying under the circumstances.

The Board granted reconsideration and determined penalties were warranted. The Board noted the WCJ granted Lara's request for treatment by Dr. Braun and that Ralphs had not sought reconsideration of that decision leaving the only issue to be the penalty. The Board stated Ralphs at the time of its refusal had not put Lara on notice it was challenging the reasonableness of the change to Dr. Braun or the basis for its refusal. Instead, the Board saw Ralphs as "unilaterally" terminating temporary disability payments. Under the circumstances, the Board concluded Lara was entitled to penalties for unreasonable delay in providing medical treatment and temporary disability benefits.

Ralphs timely petitioned for review. We issued the writ of review and heard oral argument.

DISCUSSION

The Parties' Positions

Ralphs contends it at no time refused or delayed authorization of medical treatment but continued to authorize treatment with Kaiser, which Lara had freely chosen. Rather, based on the "one-time" only language of section 4601 Ralphs contends it reasonably refused to authorize a second request to change treating physicians. Ralphs further argues Lara's request to change from Kaiser to Dr. Braun was unreasonable and based on the patently false pretext Kaiser was not treating both wrists. Finally, Ralphs argues it acted reasonably in temporarily refusing to issue temporary disability benefits for the period between June 20, 1994 and July 13, 1995 because it had no medical documentation to substantiate any claim or entitlement to such benefits after the period of disability specified in Kaiser's medical report of May 31 passed and Lara canceled her June 20 appointment.

The Board argues the imposition of the penalty was proper because Ralphs could not have had a reasonable legal doubt whether it was required to approve Lara's second request to change physicians. It argues sections 4600 and 4601 have been interpreted by the Board in three cases to permit an applicant to change physicians as often as he or she likes, within the bounds of reason. (See Abex Corporation and Continental Ins. Co. v. Workers' Comp. Appeals Bd. (Williams ) (1986) 51 Cal.Comp.Cases 321 [writ den.] (Williams ); Emporium-Capwells Co. v. Workers' Comp. Appeals Bd. (Tidwell) (1983) 48 Cal.Comp.Cases 801 [writ den.] (Tidwell ); Owens-Illinois, Inc. v. Workers' Comp. Appeals Bd. (Nino) (1978) 43 Cal.Comp.Cases 408 [writ den.] (Nino ).) The Board contends that Ralphs acted without legal support when it simply denied Lara's request to change physicians and that Ralphs should have allowed the change and pursued its remedies under section 4603 or section 4050. The Board further argues Ralphs could not have had a reasonable doubt whether it was required to continue providing temporary disability compensation because such benefits must be provided until an applicant is found to be permanent and stationary or able to return to work.

Lara raises similar arguments to those raised by the Board and also argues there was substantial evidence to support the Board's decision. That is, there was substantial evidence supporting the validity of her request to change physicians and no evidence that Ralphs held a "genuine doubt" as to her right to change physicians at the time it refused to authorize Dr. Braun. Lara requests that penalties pursuant to section 5801 be imposed on Ralphs for the meritless filing of its petition for review.

Questions Raised

Was Lara Entitled to Change her Physician a Second Time?

Section 4600 requires an employer to provide medical treatment reasonably required to cure or relieve the effects of a covered injury. Before 1976, an employer or its workers' compensation insurance carrier had full control of an injured employee's medical treatment subject to loss of control if treatment was inadequate. (See 1 Herlick, Cal. Workers' Compensation Law (5th ed. 1994), § 4.18, p. 4-16.) Effective January 1, 1976, predominate control of treatment shifted to the injured employee when section 4600 was amended to provide that 30 days after the date the injury is reported to the employer, an employee has the right to select his or her own physician. (Stats.1975, ch. 1259, § 1, p. 3304; see also 1 Herlick, supra, § 4.1, p. 4-3.)

The employee, however, maintains the option of leaving medical control with the employer. At the same time section 4600 was amended to provide for employee control of medical treatment, section 4601 was added to the Labor Code. It provided that upon an employee request, "the employer shall tender him one change of physicians." (Stats.1975, ch. 1259, § 3, p. 3304.)

At oral argument the Board explained that since the adoption of these provisions, it has consistently interpreted the section 4600 provision regarding choice of physician to apply when an employee has elected to select his or her own physician while it has interpreted section 4601 to apply when an employer retains control over medical treatment and provides a physician to treat the injured employee. The Board...