State Comp. Ins. Fund v. Workers' Comp. Appeals Bd.

• Decision Date: 27 June 1977
• Citation: 71 Cal.App.3d 133,139 Cal.Rptr. 410
• Parties: STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California and Edward J. Silva, Respondents. Civ. 40411.
• Court: California Court of Appeals Court of Appeals

Page 410

139 Cal.Rptr. 410

71 Cal.App.3d 133

STATE COMPENSATION INSURANCE FUND, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD of the State of California and Edward J. Silva, Respondents.

Civ. 40411.

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

June 27, 1977.

As Modified July 27, 1977.

Hearing Denied Aug. 25, 1977.

James J. Vonk, George S. Bjornsen, Arthur Hershenson, Frank Evans, San Francisco, for petitioner.

Airola & Ringgold, Lowell A. Airola, San Francisco, for respondent Edward J. Silva.

SIMS, Acting Presiding Justice.

A writ of review was issued in this case, on the petition of the insurer, for the purpose of inquiring into and determining the lawfulness of an opinion and order after reconsideration of the Workers' Compensation Appeals Board, sitting en banc, three commissioners dissenting. The opinion affirmed and adopted as its decision after reconsideration, an order filed April 16, 1976, granting an employee-applicant, injured prior to January 1, 1976, the right to designate a physician under the provisions of section 4600 of the Labor Code, which became effective as of that date. ¹ The petitioner contends that the amendments to the statute affected substantive rights and cannot be retroactively applied to a prior injury, and that the construction given the amendments by the appeals board should not be allowed because it may disrupt existing compatible physician-client relationships. We reject these contentions; the amendments affect to substantive rights. The opinion and order of the appeals board must be affirmed.

The applicant, an employee of the Oakland Unified School District, was injured on January 22, 1975 in the course of his duties as a schoolteacher. In addition to receiving treatment for his physical injuries, the applicant consulted a psychiatrist for attendant emotional problems. Several months after the incident, when first notified of the psychiatric treatment, petitioner arranged for the applicant to be examined by another psychiatrist. Upon his recommendation that the applicant's treatment be changed, petitioner arranged for the employee to be treated by a psychiatrist it had chosen, and on July 3, 1975, petitioner informed the applicant that it would not pay for any further treatments by the psychiatrist he had been consulting. After receiving some treatment from the psychiatrist selected by petitioner, the applicant on January 5, 1976, petitioned the board to be allowed to continue treatment with his own physician. Before a hearing was held on that petition, the applicant on February 19, 1976, gave notice of his choice of physician. The insurer refused to recognize his right to do so, and on March 4, 1976, he filed his petition to confirm his right to designate his own physician pursuant to section 4600 and an administrative rule, rule 9783, adopted by the administrative director January 22, 1976. The order under review resulted.

It is established that '(s)ince the industrial injury is the basis for any compensation award, the law in force at the time of injury is to be taken as the measure of the injured person's right of recovery.' (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (Charlesworth) (1947) 30 Cal.2d 388, 392, 182 P.2d 159, 160. See also State of California v. Ind. Acc. Com. (Erickson) (1957) 48 Cal.2d 355, 361, 310 P.2d 1; and Harrison v. Workmen's Comp. Appeals Bd. (1974) 44 Cal.App.3d 197, 202, 118 Cal.Rptr. 508.)

In Charlesworth, supra, the court reviewed a change in the law which modified a prior restriction on the award of both temporary and permanent disability payments. It added: 'The 1945 amendment of section 4661 increased the amount of compensation above what was payable at the date of the injury, and to that extent it enlarged the employee's existing rights and the employer's corresponding obligations. The amendment is therefore clearly substantive in character, and the commission, by applying it in the present proceedings, gave it a retrospective operation.' (30 Cal.2d at p. 392, 182 P.2d at p. 161.) The decision continues: 'The authorities support the conclusion that a statute changing the measure or method of computing compensation for disability or death is given retrospective effect when applied to disability or death resulting from an injury sustained before the effective date of the statute. (Citations.) . . . ( ) It is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent. (Citations.)' (Id., at pp. 392-- 393, 182 p.2D at p. 161. seE also maNnheim v. Superior Court (1970) 3 Cal.3d 678, 686, 91 Cal.Rptr. 585, 478 P.2d 17; DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 172--173, 18 Cal.Rptr. 369, 367 P.2d 865; State of California v. Ind. Acc. Com., supra, 48 Cal.2d 355, 361, 310 P.2d 1; Harrison v. Workmen's Comp. Appeals Bd., supra, 44 Cal.App.3d 197, 204, 118 Cal.Rptr. 508; and Coast Bank v. Holmes (1971) 19 Cal.App.3d 581, 594, 97 Cal.Rptr. 30.)

Acknowledgedly the medical, surgical, chiropractic and hospital treatment to be provided by the employer or his insured are benefits under the act. In Union Iron Wks. v. Industrial Acc. Com. (1922) 190 Cal. 33, 210 P. 410, the court noted, after referring to disability payments paid in lieu of wages, 'And to secure the speedy return of the workman to productive employment it is provided that medical and surgical services shall be furnished by the employer. This liability for medical and surgical services is not, therefore, a burden placed upon the employer as a penalty for any failure of duty on his party, but is merely a part of the whole compensation due the employee as the result of his injury. It therefore follows that the medical and surgical services contemplated and called for by the statute in question should be such as will tend to secure the return of the workman to productive employment.' (190 Cal. at pp. 39--40, 210 P. at p. 413. See also Kaiser Foundation Hospitals v. Workers' Comp. Appeals Bd. (1977) 19 Cal.3d 329, 332--333, 137 Cal.Rptr. 878, 562 P.2d 1037; Zeeb v. Workmen's Comp. App. Bd. (1967) 67 Cal.2d 496, 500--501, 62 Cal.Rptr. 753, 432 P.2d 361; and McCoy v. Industrial Acc. Com. (1966) 64 Cal.2d 82, 87, 48 Cal.Rptr. 858, 410 P.2d 362.) In McCoy the court referred to 'the mandate of section 4600 according him (the employer) The right to control the employee's medical care . . ..' (64 Cal.2d at p. 89, 48 Cal.Rptr. at p. 862, 410 P.2d at p. 366, emphasis added.) In Zeeb, the court explained the rationale for the control vested in the employer prior to January 1, 1976, as follows: 'Obviously, it will ordinarily be in the interests of both the employer and the employee to secure adequate medical treatment so that the employee may recover from his injury and return to work as soon as possible. Permitting the employer to control the medical treatment permits the employer, who has the burden to provide the medical treatment, to minimize the danger of unnecessary and extravagant treatment, and in the light of the employer's interest in speedy recovery, the employer's control should rarely result in a denial of necessary treatment. Thus the two purposes underlying section 4600 of the Labor Code, effective treatment and minimization of expense, will ordinarily be served where the employer is permitted control of the medical treatment.' (67 Cal.2d at p. 501, 62 Cal.Rptr. at p. 756, 432 P.2d at p. 364.)

From the foregoing the insurer, and the dissenting minority of the appeals board, conclude, as stated by the latter: 'It is abundantly clear that the Supreme Court has interpreted the right of medical control under Labor Code section 4600 prior to the 1975 amendment to be a substantive one.' We disagree. In McCoy the court carefully distinguished between the medical benefits due from the employer to the employee and the manner in which they were to be furnished, as follows: 'It is important to note at the outset that we are not here concerned with the scope of the employer's responsibility to furnish medical attention to an employee who suffers an industrial injury. The employer, whether providing the treatment himself or reimbursing the employee for self-procured care, is required by section 4600 to pay only the cost of such care as is reasonably required to cure or relieve. The aspect of the statute with which we deal is the extent of the employer's privilege to control the course of the injured employee's medical care.' (64 Cal.2d at p. 86, 48 Cal.Rptr. at p. 861, 410 P.2d at p. 365, emphasis added.) It also referred to the employer's 'opportunity to render medical assistance.' (Id., at p. 87, 48 Cal.Rptr. 858, 410 P.2d 362, emphasis added.)

The rationale of Zeeb, which is quoted above, does not bear analysis. If there is unnecessary and extravagent treatment the employer or his insurer should not bear the cost of such treatment. As stated in McCoy and recognized in Zeeb, 'And we emphasize also that, whether the treatment is administered by a doctor chosen by the employee or one selected by the employer, the latter is liable for no more than the reasonable cost of such treatment as is reasonably required to cure or relieve from the effects of the injury.' (64 Cal.2d at p. 89, 48 Cal.Rptr. at p. 863, 410 P.2d at p. 367, 67 Cal.2d at p. 502, 62 Cal.Rptr. 753, 432 P.2d 361. See also Bell v. Samaritan Medical Clinic, Inc. (1976) 60 Cal.App.3d 486, 489--492, 131 Cal.Rptr. 582 (hg. den.).)

The Legislature has neither increased nor decreased the cost of the medical benefits due from the employer to the employee. It has rejected the rationale of Zeeb, and changed the procedure under which the benefits will be furnished. As a matter of policy it has recognized that the employee may secure a speedier and more efficient recovery under the care of a physician of his own selection in whom he has trust and confidence. We can no more assume that...