Employment Law Alert: Supreme Court Resuscitates Medical-Legal Consultations

The long awaited decision of the California Supreme court issued today in Valdez v. WCAB, and Warehouse Demo Services, B237153M, slip op., Cal., Nov. 14, 2013. The decision sides with the medical-legal industry and applicants’ bar in finding that the WCAB must admit into evidence and consider medical opinions of physicians who are neither authorized to treat nor within an employer’s managed physicians’ network (MPN).

Elayne Valdez suffered an industrial injury in a trip and fall. Her employer provided treatment through its MPN physician. When Ms. Valdez became dissatisfied with the physician, she began to treat with a non-MPN physician, Dr. Nario. She asked the WCAB to award temporary total disability benefits based on Dr. Nario’s report. The employer opposed her request by asserting that Dr. Nario’s report should not be admitted into evidence, because it originated outside the MPN. It supported its position by referring to California Labor Code Section 4616.6, which provides in part that “No additional examinations shall be ordered by the appeals board and no other reports shall be admissable (sic) to resolve any controversy arising out of this article.”

The trial judge relied on Dr. Nario’s opinion and awarded the requested benefits. On reconsideration the WCAB en banc reversed the decision. The Board held that section 4616.6 precluded the admission of the Nario report. It added that other considerations supported its conclusion, including that the doctor was not the primary treating physician and that to permit non-MPN consultants to opine on disputes with MPN physicians would subvert the cost saving intention of the legislature when it authorized the creation of MPNs. The MPN legislation, of which 4616.6 is a part, sets out a detailed system for disputing treatment decisions, including obtaining 2nd and 3rd opinions within the MPN and obtaining an independent medical review outside the MPN.

The California Supreme Court sustained the conclusion of the Court of Appeal holding that the WCAB was wrong in its analysis. The Supreme Court finds that the proscription of 4616.6 is limited to disputes about diagnosis and treatment within the MPN, the subject of article 2.3 of the California Labor Code. In other than that limited situation, several statutes specify that reports from physicians retained by the injured worker may be considered by the WCAB, including section 4064(d) “no party is prohibited from obtaining any medical evaluation or consultation at the party’s own expense” and 5703(a) which the court summarizes as, “[t]he Board is, in general, broadly authorized to consider ‘[r]eports of attending or examining physicians.”

Further, the court points to the amendment to Labor Code section 4605 made in the 2012 reform as evidence that its decision is consistent with legislative intent. The statute now reads that there is no limit on an employee’s right to self-procure a consultation at his or her own expense, but that “[a]ny report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation.” The court does not address whether such a report may be supplemented solely by applicant’s testimony to support the award nor whether the admissibility of the Nario report is affected by the applicant’s demand for reimbursement for the exam.

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November 14, 2013