BRAEWOOD CONVALESCENT HOSPITAL v. WORKERS COMPENSATION APPEALS BOARD OF STATE OF CALIFORNIA

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Court of Appeal, Second District, Division 5, California.

BRAEWOOD CONVALESCENT HOSPITAL and Cypress Insurance Company, Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD OF the STATE OF CALIFORNIA and Eugene Bolton, Respondents.

Civ. 62514.

Decided: September 23, 1982

Schummer & Barton and Ross M. Barton, Van Nuys, for petitioners. Leland D. Starkey, Los Angeles, for respondents.

Petitioner Braewood Convalescent Hospital and Cypress Insurance Company seek review and annulment of an award of respondent Workers' Compensation Appeals Board (WCAB or Board) awarding the applicant reimbursement of medical expenses and temporary disability for a nine-month live-in self-procured weight control program obtained at Duke University Medical Center in Durham, North Carolina.   Petitioners further seek annulment of the WCAB award of further medical treatment in the form of an ongoing medically supervised weight reduction program.   As we shall explain, petitioners are entitled to relief.

FACTS

The underlying facts are as follows:

On January 6, 1978, applicant Eugene Bolton sustained an admitted injury to his back and right elbow arising out of and occurring in the course of his employment as a cook with petitioner Braewood Convalescent Hospital.

Braewood's workers' compensation carrier Cypress Insurance Company provided medical treatment and temporary disability benefits.   At the time of the industrial injury applicant weighed approximately 422 pounds.   Reports by the treating physicians noted that applicant was losing weight through a Schick weight reduction program.   The physicians encouraged applicant in his weight loss efforts, stating that the weight loss would benefit applicant's back condition.

Petitioners did not offer to reimburse applicant for any expenses in connection with his weight loss programs.

After his treating physicians told him that weight loss would aid in the improvement of his back condition, applicant was advised by a friend that Duke University Medical Center had “the No. 1 obesity clinic in the world.”   Applicant attended the Duke University program from February 26, 1979, to November 9, 1979, during which time he lost 176 pounds.

Applicant claimed reimbursement for approximately $7,000 in expenses in conjunction with the Duke University program, including lodging, meals and round-trip transportation.   Petitioners denied liability for the self-procured medical treatment and for any further weight-loss treatment.

The workers' compensation judge (WCJ) awarded applicant reimbursement of the expenses in conjunction with the Duke University program “in the sum of $1,828.58 and in such other amounts as may be adjusted by the parties or determined herein upon the filing of the petition and supporting documents.”   The WCJ did not award the applicant temporary disability during the treatment at Duke University.   The WCJ found applicant to be permanent and stationary, with 26 percent permanent disability.

Petitioners petitioned for reconsideration of the finding and award, claiming error on the issues of self-procured medical treatment, further medical treatment, and credit for overpayment of temporary disability.   The WCAB granted reconsideration, and on its own motion granted reconsideration of the WCJ's failure to award temporary disability during the Duke University treatment.

After reconsideration the WCAB affirmed the WCJ's award of the self-procured medical treatment and further medical treatment.   In addition, the Board extended the temporary disability award to include the period of applicant's participation in the Duke University program, from February 26, 1979, to November 9, 1979.

CONTENTIONS

Petitioners contend that the WCAB erred in the following:  (1) in granting reconsideration on its own motion on the issue of temporary disability during the Duke University treatment;  (2) in awarding applicant reimbursement for the expenses of the self-procured weight loss program at Duke University;  (3) in awarding temporary disability during that program;  and (4) in awarding future medical treatment in the form of an ongoing weight loss program.

DISCUSSION

I

 Labor Code section 5906 1 provides the Board with the authority to grant reconsideration on its own motion.   In Redner v. Workmen's Comp. Appeals Bd. (1971) 5 Cal.3d 83, 92–93, 95 Cal.Rptr. 447, 485 P.2d 799, the court held that the Board's power to grant reconsideration on its own motion was limited to those grounds specified in Labor Code section 5903.2

Here the Board indicated that its granting of reconsideration of the temporary disability issue was based on an inconsistency in the decision of the WCJ in allowing as self-procured medical treatment the weight reduction program at Duke University, but not awarding temporary disability up to the conclusion of that program.   Also, the Board stated that the trial judge erred in relying in part on the medical report of Dr. Wells, but failing to follow Dr. Wells' conclusion in the December 13, 1979, report that applicant was temporarily disabled until the conclusion of the weight reduction program.

The Board's failure to specifically state on which grounds contained in Labor Code section 5903 the Board was granting reconsideration violates Labor Code section 5908.5's provision that an order granting reconsideration “shall state the evidence relied upon and specify in detail the reasons for the decision,” and hinders the Court of Appeal in ascertaining the principles relied on by the Board.  (See Goytia v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 889, 83 Cal.Rptr. 591, 464 P.2d 47.)

Nevertheless, in that the Board's reconsideration appears, in fact, to be based on grounds contained in Labor Code section 5903, we conclude that the Board did not act in excess of its authority in granting reconsideration.

II

Turning to the merits of petitioners' arguments, we hold that applicant was entitled to a weight reduction program to cure or relieve from the effects of the industrial injury, but that the portions of the award herein relating to reimbursement for self-procured medical treatment, temporary disability, and future medical treatment were in error.

A. Need for a medically supervised weight reduction program to cure or relieve from the effects of the industrial injury.

“[J]udicial review of decisions of the WCAB on factual matters is limited to determining whether the decision, based on the entire record, is supported by substantial evidence ( [Lab. Code,] § 5952, subd. (d);  LeVesque v. Workmen's Comp. Appeals Bd. (1970) 1 Cal.3d 627 [83 Cal.Rptr. 208, 463 P.2d 432] ).”  (Southern California Rapid Transit Dist., Inc. v. Workers' Comp. Appeals Bd. (1979) 23 Cal.3d 158, 162, 151 Cal.Rptr. 666, 588 P.2d 806.)

“[I]t is well established that the relevant and considered opinion of one physician, though inconsistent with other medical opinions, may constitute substantial evidence.  (Place v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 372, 378 [90 Cal.Rptr. 424, 475 P.2d 656];  Smith v. Workmen's Comp. Appeals Bd. (1969) 71 Cal.2d 588, 592 [78 Cal.Rptr. 718, 455 P.2d 822].)”  (Market Basket v. Workers' Comp. Appeals Bd. (1978) 86 Cal.App.3d 137, 144, 149 Cal.Rptr. 872.)

 Petitioner admits that where a previously quiescent condition has been lighted up by an industrial injury, medical treatment for the pre-existing condition is the obligation of the employer.  (Ballard v. Workmen's Comp. Appeals Bd. (1971) 3 Cal.3d 832, 92 Cal.Rptr. 1, 478 P.2d 937.)   Petitioner also admits that where a pre-existing disease must be treated in order to cure the industrial disability, the employer is liable for such medical treatment.  (Dorman v. Workers' Comp. Appeals Bd. (1978) 78 Cal.App.3d 1009, 144 Cal.Rptr. 573.)

 Appropriate medical treatment includes the following:  “Medical, surgical, chiropractic, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatus, including artificial members, 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.”  (Lab. Code, § 4600.)

In the present case petitioners contend that applicant has been obese his entire life and, at 442 pounds prior to the industrial injury, needed weight reduction prior to the industrial injury.   For that reason, petitioners contend that the need for weight reduction is unrelated to the industrial injury.

The initial medical treatment herein was provided by Drs. Hofgaarden and Alexander.   On February 7, 1978, Dr. Alexander noted that applicant “is an extremely obese male and I am surprised that he has not had back trouble in the past.”   In a report of March 7, 1978, Dr. Alexander noted that “[t]his patient is considerably improved since his last visit.   He has been loosing [sic] weight at the Schick Center and has lost 10 lbs. in two weeks.”   On March 21, 1978, Dr. Alexander reported, “The patient returns today.   He has taken weight reduction at the Schick Center as well as at another weight reduction clinic.   He feels considerable [sic] better.”

Dr. Hugh A. Wells reported on March 14, 1978, that:  “There is no evidence of neurological involvement regarding the patient's low back and dorsolumbar scoliosis would account for the persisting symptoms in this region․   Of course, the patient's enormous size certainly does not help matters.   I feel he would benefit further from conservative measures if a careful program of weight reduction is also instituted simultaneously, under medical supervision.   Such a program should be instituted near his home in Pasadena.”

In his report of December 13, 1979, Dr. Wells stated:  “Since last examined here on March 9, 1978 the patient has continued under the care of his physician for weight reduction program.   He states he was approximately 411 pounds at the time of the injury and had reduced to 381 pounds by March 1978 when he was examined here.   In the interim he has lost further weight and now weighs 285 pounds.   Overall he states he feels much better, feels less pain and is more agile․  [¶] As compared to the previous visit, there is considerable improvement in that, as noted above, he has reduced his weight considerably and overall reports less pain though the motion of the lumbosacral spine is limited at this visit as compared to the previous visit.   The patient is making remarkable progress in regard to weight reduction and in view of the success thus far, it is felt he should continue on the weight reduction program.   He continues working as a Security Guard since November 1979 though only two days per week and has no significant difficulty in fulfilling his work activities․”

These medical reports indicate that the applicant required a weight reduction program to cure or relieve the effects of the industrial back injury.   These reports provide substantial evidence for a finding that a weight-reduction program would be reasonable medical treatment.

B. Reimbursement for self-procured medical treatment at Duke University.

The award of the WCAB does not provide any specific sum for applicant's weight loss treatment.   However, the Board held that the expenses for medical treatment at Duke University are reasonable self-procured medical expenses.   Also, the temporary disability award grants temporary disability through the entire period of applicant's treatment at Duke University.   In that the temporary disability award is predicated on the reasonableness of the medical treatment giving rise to the temporary disability, it is necessary that we rule on the threshold issue of whether any of the medical treatment at Duke University is reimbursable as self-procured medical treatment.

Labor Code section 4600 limits the procurement of medical treatment as follows:  “․ 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․”

California Administrative Code, title 8, section 9780, subdivision (e), (Rules and Regulations of the Administrative Director, Division of Industrial Accidents, § 9780, subd. (e)), provides that:  “ ‘Reasonable geographic area’ within the context of Labor Code Section 4600 shall be determined by giving consideration to:  [¶] (1) The employee's domicile, place of employment and place where the injury occurred;  [¶] (2) The availability of physicians in the fields of practice, and facilities offering treatment reasonably required to cure or relieve the employee from the effects of the injury;  [¶] (3) The employee's medical history;  [¶] (4) The employee's primary language.”

The WCAB rules (former section 10635) provide:  “When the evidence adduced in a cause or proceeding demonstrates that expenses, the subject of Labor Code Section 4600, were incurred, recovery thereof will be allowed as they appear, unless:  [¶] (1) Proof of unreasonableness is entered;  or [¶] (2) The record of said cause or proceeding makes manifest the unreasonableness of an expense or the expenses claimed.”  (Former Cal.Admin.Code, tit. 8, § 10635.)

 Before self-procured medical treatment is reimbursable, such treatment must be reasonable.  (McCoy v. Industrial Acc. Com. (1966) 64 Cal.2d 82, 48 Cal.Rptr. 858, 410 P.2d 362.)   Reasonable medical treatment does not require that the employer provide the applicant with medical treatment the applicant believes to be “the best in the world,” regardless of the locale or expense of the treatment.

 The petitioners must only provide applicant with medical treatment reasonably required to cure or relieve him from the effects of the injury within a “reasonable geographic area.”   The medical treatment at Duke University in North Carolina could only be deemed to be within a reasonable geographic area if local medical facilities do not provide applicant with reasonable weight reduction treatment.   The only evidence present in the record on this issue demonstrates that (1) applicant was successfully losing weight through a local program at Schick;  (2) his treating physicians recommended that he continue on his local weight reduction program, one stating specifically it should be “near his home in Pasadena”;  and (3) applicant had knowledge of a program at UCLA that was similar to Duke University's program.   It was manifestly unreasonable for the Board to find that applicant is entitled to reimbursement for the Duke University treatment on such a record, without making any findings in accordance with Labor Code section 4600 and California Administrative Code, title 8, section 9780, subdivision (e), as to the availability of reasonable medical treatment locally.

We hold, therefore, that on the record herein, applicant's claim for reimbursement for the Duke University medical treatment is manifestly unreasonable.   The medical treatment at Duke University in North Carolina would only be reasonable if local medical facilities do not provide adequate weight-reduction treatment.3  Thus, for the expenses of Duke University medical center to be deemed reasonable, applicant must prove that he could not obtain an adequate local weight reduction program or that the cost of treatment was no more than it would have been locally.

This holding does not conflict with the holding in State Comp. Ins. Fund v. Workers' Comp. App. Bd. (Arroyo) (1979) 69 Cal.App.3d 884, 138 Cal.Rptr. 509.   In Arroyo the employer's insurance carrier provided the injured employee with medical treatment which the employee alleged did not aid him.   Thereafter, the employee sought medical treatment from a physician in Tijuana, Mexico, where the applicant resided.   The defendant carrier raised the sole issue of whether the self-procured medical treatment by a physician not licensed to practice in California is excluded per se from the benefits of Labor Code section 4600.   The court held in Arroyo that reimbursement for such medical treatment will be required under Labor Code section 4600, if such treatment is reasonable.  Arroyo, thus, in no way alters Labor Code section 4600's basic test of the reasonableness of applicant's self-procured medical treatment within a “reasonable geographic area.”

C. Temporary Disability

 An employer is liable for temporary disability during the period in which an injured employee is undergoing medical diagnostic procedures or treatment for an industrial injury, and is unable to work.  (Brown v. Ind. Acc. Comm. (1941) 44 Cal.App.2d 6, 111 P.2d 931.)   However, where the medical treatment giving rise to the temporary disability is unreasonable, such medical treatment cannot, by itself, support a period of temporary disability based thereon.   In that the temporary disability award from February 26, 1979, to November 9, 1979, was based on the erroneous finding of the reasonableness of the Duke University treatment, we annul that portion of the temporary disability award.

D. Future medical award.

The WCJ awarded further medical treatment, finding that “[f]urther medical treatment is reasonably required for the injury, including by way of specification but not limitation a professional medical weight control program․”   The WCJ found that petitioners could comply with this award by providing applicant with continued weight reduction at a program at UCLA.

 The WCJ based this further medical award on applicant's testimony that he would like further weight-reduction treatment, without citing any medical opinion to substantiate any further need for weight reduction to cure or relieve the effects of the injury, or any other future medical treatment.   The WCJ's failure to discuss the medical authority supporting the further medical treatment award after applicant's return from Duke University is a further violation of the WCJ's duty under Labor Code section 5908.5 to specify the reasons for the decision.

 Those medical reports discussing the issue of further medical treatment herein, the reports of Dr. Wells, dated December 13, 1979, and Dr. Compton, dated December 12, 1979, recommend that applicant continue losing weight to relieve the effects of the industrial injury, without specifying the need for any medical treatment relating to weight reduction.   Thus, the WCJ's determination that petitioners should provide applicant with a weight reduction program at UCLA is not based on substantial evidence.

For the foregoing reasons, the award of the WCAB as to the issues of reimbursement of self-procured medical expenses, temporary disability and further medical treatment is hereby annulled, and this matter is remanded to the WCAB for further proceedings.

I respectfully dissent.

Since the majority rely upon the facts to justify their conclusion, I deem it necessary to restate the facts as I read the record;  some repetition regrettably results.1

FACTS

The underlying facts are as follows:

On January 6, 1978, applicant Eugene Bolton sustained an admitted injury to his back and right elbow arising out of and occurring in the course of his employment as a cook with petitioner Braewood Convalescent Hospital (Braewood).

Braewood's workers' compensation carrier Cypress Insurance Company (Cypress) provided medical treatment and temporary disability benefits.   At the time of the industrial injury applicant weighed approximately 422 pounds.   Reports by the treating physicians noted that applicant was losing weight through a Schick weight reduction program.   The physicians encouraged applicant in his weight loss efforts, stating that the weight loss would benefit applicant's back condition.

Petitioners refused to reimburse applicant for any expenses in connection with his weight loss programs.   At trial applicant testified that he had attempted weight reduction through the following organizations:  Overeaters Anonymous;  Weight Watchers;  Schick;  El Dorado Weight Clinic;  hypnosis;  and “Fats,” a group therapy program.   He was also treated for obesity by his family physician at Kaiser.   None of these programs provided him with permanent weight loss.

After his treating physicians told him that weight loss would aid in the improvement of his back condition, applicant was advised by a friend who had personally participated in the Duke University Medical Center weight control program, that the Duke clinic was “the No. 1 obesity clinic in the world.”   Applicant thereupon arranged to attend that program and participated in it from February 26, 1979, to November 9, 1979, during which time he lost 176 pounds.   On June 29, 1979, Dr. Hugh Wells, one of applicant's treating physicians, reported in relevant part:  “It is my understanding that Mr. Bolton, in line with my recommendations in my report of March 14, 1978, had been on several weight reduction programs near his home without success.  [¶] ․ Mr. Bolton is currently in Durham, North Carolina, enrolled in the weight reduction program at Duke University Medical Center under the supervision of Dr. Walter Kempner and, I am advised, is doing very well and losing weight.  [¶] I am totally in agreement with this program and believe that it is an integral part of his treatment for his above captioned industrial injury.”

Applicant claimed reimbursement for approximately $7,000 in expenses in conjunction with the Duke University program, including lodging, meals and round-trip transportation.   Petitioners denied liability not only for the self-procured medical treatment or any such program, as well as for any further weight-loss treatment.

The workers' compensation judge (WCJ) awarded applicant reimbursement of the expenses in conjunction with the Duke University program.   The WCJ did not award the applicant temporary disability during the treatment at Duke University.   The WCJ found applicant to be permanent and stationary, with 26 percent permanent disability.

Petitioners petitioned for and the WCAB granted reconsideration, and on its own motion granted reconsideration of the WCJ's failure to award temporary disability during the Duke University treatment.

The WCAB affirmed the WCJ's award of the self-procured medical treatment and further medical treatment.   In addition, the Board extended the temporary disability award to include the period of applicant's participation in the Duke University program, from February 26, 1979, to November 9, 1979.

On the merits of petitioner's arguments, I would hold, as did the WCJ, that applicant was entitled to a weight reduction program to cure or relieve from the effects of the industrial injury.

The threshold issue is whether any of the medical treatment at Duke University is reimbursable as self-procured medical treatment.   The facts are that applicant has presented a prima facie case that this medical treatment was reasonable and petitioner here failed to offer any evidence to rebut it.2

Before self-procured medical treatment is reimbursable, such treatment must be reasonable.3  Here, the WCJ found the treatment procured by Mr. Bolton was reasonable and if this finding is supported by creditable evidence it must be affirmed.   First, there is no question but that Mr. Bolton needed the weight reduction and had tried all of the local programs except for that at UCLA.   Likewise, as heretofore pointed out, ample medical support is found in the record corroborating Bolton's need.   It is necessary, therefore, to face the second and crucial issue, i.e., was the program selected by him reasonable?   Certainly, absent what may be a similar program at UCLA, there is nothing in the record to even suggest that the Duke program was not reasonable.   In searching the record to establish the comparability of the UCLA program, the sole description of that program comes from the testimony of Bolton.   Bolton testified:  “Q Have you investigated the question of whether or not there are similar type programs in California?  [¶] A I have.  [¶] Q And what was the result?  [¶] A One that I checked into was at UCLA.   I'm not too familiar with it.   They sent me the papers on it, but right now Duke University is the number one obesity clinic in the world.   They would come from all over the world.  [¶] Q Do you know one way or the other whether the UCLA program is identical?  [¶] A No.   There is not another like—[¶] Q Do you know anything about the differences between the two?  [¶] A No, I don't know too much about UCLA.”

Based upon this sketchy record, the WCAB concluded that there was a similar program available at UCLA.   Since there appears to be no challenge to that conclusion, I likewise accept it as fact.   I note, however, the total lack of any cost comparison.   There just is no evidence that the local program would be less expensive.4  It undoubtedly was just such consideration which prompted the WCAB, in its order, to provide the choice of facilities to petitioner:  “Defendants may comply with the award by providing applicant with the UCLA program and are not required to send applicant back to the Duke University Medical Center but may do so if they see fit.”  (Emphasis added.)

I would hold that an injured employee, when required to obtain self-procured medical treatment, may exercise his judgment as to where to obtain that treatment so long as it is a reasonable selection.   The reasonableness of the geographical location of such procured treatment must be weighed by comparative costs and availability to the insurer to verify the quality, need and other matters.   It is, however, the obligation of the insurer to produce such evidence demonstrating to the WCAB that the selection by the employee was unreasonable once a prima facie case has been made by the employee.

As to the temporary disability, only were it to be held that such temporary disability award from February 26, 1979, to November 9, 1979, is based on an erroneous finding of the reasonableness of the Duke University treatment, could that portion of the temporary disability award be annulled.   The record does not support such a conclusion.

As to the future medical award, the WCJ awarded further medical treatment, finding that “[f]urther medical treatment is reasonably required for the injury, including by way of specification but not limitation a professional medical weight control program․”   The WCJ found that the petitioners could comply with this award by providing the applicant with continued weight reduction at a program at UCLA or at Duke at its option.

The WCJ based this further medical award on applicant's testimony that he would like further weight-reduction treatment, and the medical reports corroborated the need for such treatment.

Those medical reports discussing the issue of further medical treatment herein, the reports of Dr. Wells, dated December 13, 1979, and Dr. Compton, dated December 12, 1979, recommend that applicant continue on his weight-reduction program to relieve the effects of the industrial injury.

For the foregoing reasons, the award of the WCAB as to the issues of reimbursement of self-procured medical expenses, temporary disability and further medical treatment should be affirmed.

FOOTNOTES

1.   Labor Code section 5906 provides:  “Upon the filing of a petition for reconsideration, or having granted reconsideration upon its own motion, the appeals board may, with or without further proceedings and with or without notice affirm, rescind, alter, or amend the order, decision, or award made and filed by the appeals board or referee on the basis of the evidence previously submitted in the case, or may grant reconsideration and direct the taking of additional evidence.   Notice of the time and place of any hearing on reconsideration shall be given to the petitioner and adverse parties and to such other persons as the appeals board orders.”

2.   Labor Code section 5903 provides:  “At any time within 20 days after the service of any final order, decision, or award made and filed by the appeals board or a referee granting or denying compensation, or arising out of or incidental thereto, any person aggrieved thereby may petition for reconsideration upon one or more of the following grounds and no other:  [¶] (a) That by such order, decision, or award made and filed by the appeals board or a referee, the appeals board acted without or in excess of its powers.  [¶] (b) That the order, decision, or award was procured by fraud.  [¶] (c) That the evidence does not justify the finding of fact.  [¶] (d) That the petitioner has discovered new evidence material to him, which he could not, with reasonable diligence, have discovered and produced at the hearing.  [¶] (e) That the findings of fact do not support the order, decision, or award.”

3.   We reject applicant's contention made at oral argument that he is free to chose a treatment facility anywhere in the world solely at his discretion.

1.   As to the basic principles of law, there is no dispute.   It is to the law's application to the facts as understood that also varies the result.

2.   Labor Code section 4600 limits the procurement of medical treatment as follows:  “․ 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․”

3.   The majority state that “the best in the world” medical treatment is not what the employee is entitled to.   I do not understand that an employee stands in a second class position when it comes to medical treatment.

4.   I would take notice of the fact that no air fare would be involved in the local program.

ASHBY, Associate Justice.

HASTINGS, J., concurs.