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Court of Appeal, First District, Division 3, California.


Civ. A017340.

Decided: August 22, 1984

Airola & Williams, Lowell A. Airola, San Francisco, for petitioner Permanente Medical Group, Kaiser Foundation Hospitals. Parrish, Moriarty & Smith, James L. Moriarty, San Francisco, for respondent Stanford Hosp. Malovos & Chasuk, Glynn P. Falcon, Jr., Mountain View, for respondent Susan Vollman King.

Permanente Medical Group/Kaiser Foundation Hospitals (hereafter Kaiser), lien claimant in a proceeding before the Workers' Compensation Appeals Board (hereafter Board), seeks review of an order of the Board denying its petition for reconsideration and awarding Stanford Hospital (hereafter Stanford), employer of applicant Susan Vollman King, the sum of $320 to reimburse Stanford's medical expert, Dr. Joseph Bernstein, for time lost when a hearing scheduled for the purpose of the doctor's cross-examination was cancelled due to the illness of Kaiser's counsel.   We granted review to consider the propriety of the award by the Board of medical-legal costs to Stanford.

Applicant, an occupational therapist employed by Stanford, alleged injury to her low back on January 18, 1978, while she was lifting a heavy patient.   After several hearings at which applicant and three expert medical witnesses testified, the workers' compensation judge made a finding of no industrial injury.   The judge found the opinion of Dr. Bernstein, who had been engaged by Stanford as its defense medical expert, to be persuasive.

Applicant and Kaiser, who had provided medical services to applicant through her health plan, filed petitions for reconsideration.   Kaiser contended that it had received no notice of the second hearing at which Dr. Bernstein's testimony had been completed.   On review of an order of the Board denying the petitions for reconsideration, and the Board having admitted that Kaiser had been denied notice and opportunity to be heard, this court on December 4, 1979, annulled the Board's order of June 26, 1979, and remanded the matter to the Board for further proceedings.  (King v. Workers' Compensation Appeals Board, 1 Civ. 47566;  Permanente, et al. v. Workers' Compensation Appeals Board, 1 Civ. 47570.)

The Board set the matter for further hearing on September 2, 1980, at 9 a.m., with Dr. Bernstein subpoenaed to appear.   On the morning of September 2, 1980, Kaiser, through its attorneys, Airola & Ringgold, notified the Board that Ms. Ayoob, the attorney scheduled to handle the appearance, was ill and could not appear.   The Airola office also contacted Dr. Bernstein's office and advised the doctor not to appear.   Dr. Bernstein, who had reserved an entire morning for his testimony, thereafter submitted a bill in the amount of $320 to Airola and Ringgold.1  After Mr. Airola declined to pay for Dr. Bernstein's time, Stanford petitioned the Board for an order requiring the payment of medical-legal expenses.

On August 17, 1981, a further hearing was held, at which Dr. Bernstein appeared and was cross-examined by Kaiser.   Applicant testified in rebuttal.   On January 29, 1982, the Board, after reviewing the record, including the August 1981 testimony of Dr. Bernstein and the applicant, affirmed the finding of no industrial injury.   In addition, the Board found that the $320 represented by the bill of Dr. Bernstein was incurred as a direct result of Kaiser's inability to appear at the hearing of September 2, 1980, and the Board ordered Kaiser to pay the sum of $320 to Dr. Bernstein in satisfaction of his claim.

 Again, applicant and Kaiser petitioned for reconsideration.   Applicant's petition for reconsideration was not timely filed and was properly dismissed.  (Lab.Code, § 5903.)   With respect to Kaiser's petition, the Board concluded that the finding of no industrial injury was justified by substantial evidence.   The Board is empowered to resolve conflicts in the evidence and to make its own credibility determinations.   The Board after a review of all the evidence, including that of applicant, chose to rely upon the opinion of Dr. Bernstein.   The Board's findings were supported by substantial evidence.  (Smith v. Workmen's Comp. App. Bd. (1969) 71 Cal.2d 588, 592, 78 Cal.Rptr. 718, 455 P.2d 822.   The Board also concluded that it acted properly in ordering Kaiser to satisfy Dr. Bernstein's billing.   The Board reasoned that when Kaiser subpoenaed Dr. Bernstein to appear for cross-examination on September 2, 1980, it engaged his services, and since Dr. Bernstein incurred expenses of $320 by reason of Kaiser's cancellation of the hearing, Kaiser was liable under the theory of quantum meruit.

 The Board justified its action in imposing costs on Kaiser on the basis that it may exercise judicial powers in the manner of a court.  (Bankers Indem. Ins. Co. v. Indus. Acc. Comm. (1935) 4 Cal.2d 89, 97, 47 P.2d 719.)   But the general rule relating to judicial tribunals is that the right to recover costs is wholly dependent upon statute.  (4 Witkin Cal. Procedure (2d ed.1971) Judgment, § 80, p. 3242.)

 Statutory authority for the reimbursement to an applicant of medical-legal costs incurred in prosecuting a worker's compensation claim is provided by sections 4600 and 5811 of the Labor Code.  (Adams v. Workman's Comp. App. Bd. (1976) 18 Cal.3d 226, 231, 133 Cal.Rptr. 517, 555 P.2d 303.)   The applicant may be reimbursed for medical-legal costs even though the applicant is unsuccessful in his or her claim.  (Subsequent Injuries Fund v. Industrial Acc. Com. (1963) 59 Cal.2d 842, 844, 31 Cal.Rptr. 477, 382 P.2d 597.)

At the time of the Board's order, Labor Code section 4600, in relevant part, provided:  “In accordance with the rules of practice and procedure of the appeals board, the employee, or the dependents of a deceased employee, shall be reimbursed for expenses reasonably, actually, and necessarily incurred for X-rays, laboratory fees, medical reports, medical testimony, and, as needed, interpreter's fees, to prove a contested claim.   The reasonableness of and necessity for incurring such expenses to prove a contested claim shall be determined with respect to the time when such expenses were actually incurred.”  (Emphasis added.)  Labor Code section 5811, in relevant part provides:  “․In all proceedings under this division before the appeals board, costs as between the parties may be allowed by the appeals board.”

In City of Los Angeles v. Industrial Acc. Com. (1963) 215 Cal.App.2d 310, 30 Cal.Rptr. 75, the question arose whether the applicant's expert medical witness should be reimbursed by the defendant [city] for an entire afternoon devoted to testimony when the medical witness had been subpoenaed by the defendant to appear and testify for the defendant.   The court concluded that the applicant should be reimbursed by the defendant for the sum of $190, which included a charge of $95 for time spent by the expert medical witness in testifying.   The court reasoned as follows:  “When the services of the doctor were engaged to make an examination and report he became a witness for Clark [the applicant].  His report was the equivalent of testimony given in person.   He was subject to cross-examination, as he would have been if his evidence had been given orally.   He was not brought in as a witness by means of the subpoena issued at the instance of the city.   He was already a witness for Clark and he did not become a witness of the city․  The cross-examination was a part of the doctor's evidence given on behalf of Clark.   It was medical testimony to prove a contested claim.   The duty of the doctor to appear and submit to cross-examination, if it was required, did not depend upon or require an agreement with Clark that he would do so.   They were both charged with knowledge that the duty of the doctor to give evidence of facts gleaned during the examination and to give his professional opinion did not end with the submission of his report.

“We have reached the conclusion that when the services of the doctor as an expert witness were engaged [by the applicant] the obligation to compensate him for time devoted to the giving of his evidence extended to his appearance for cross-examination.   It is immaterial that his evidence was first given in writing.”  (City of Los Angeles v. Industrial Acc. Com., supra, 215 Cal.App.2d 310, 313, 30 Cal.Rptr. 75.)

 In this instance, the services of Dr. Bernstein were engaged by Stanford.   Although Kaiser subpoenaed Dr. Bernstein for the purpose of cross-examination, Dr. Bernstein remained the witness of Stanford Hospital, and Stanford was obligated to compensate him not only for his report but also for his testimony on cross-examination.

 A specific statute upon a subject controls over a general provision.   (Div. of Labor Law Enforcement v. Moroney (1946) 28 Cal.2d 344, 346, 170 P.2d 3.)  Labor Code sections 4600 and 5811 govern awards of costs in workers' compensation proceedings.  Section 4600 limits reimbursement of expenses incurred for medical testimony to those incurred by an applicant in proving a claim.   That limitation would be of no effect if the Board could utilize section 5811 to impose expenses of an employer's medical expert upon a lien claimant who had provided medical care to the applicant to cure or relieve from the effects of the injury.   Although the Board is invested with broad equitable powers (Kaiser Foundation Hospital v. Workmen's Comp. App. Bd. (1978) 83 Cal.App.3d 413, 418, 148 Cal.Rptr. 54), the Board is limited by section 4600 in its authority to award medical-legal costs.

That portion of the Board's order awarding medical-legal costs to Stanford is annulled, and the matter is remanded to the Board for further proceedings consistent with this opinion.


1.   On his statement for the “Morning reserved for Court appearance,” Dr. Bernstein listed “4 hours at 80.00 an hour,” for a total sum of $320.   At the hearing, Dr. Bernstein testified that his total fee for an entire morning of testimony would have been $650, but because he did get some work done in his office the fee was reduced to $320.

BARRY-DEAL, Associate Justice.

WHITE, P.J., and SCOTT, J., concur.

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