HORIZON MEDICAL GROUP v. ANGULO

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

HORIZON MEDICAL GROUP, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Constitution State Service Company and Target Stores, Respondents; Aileen ANGULO, Real Party in Interest.

No. B096183.

Decided: June 27, 1996

Lee R. Mathis & Associates and Robert E. Willyard, Dana Point, for Petitioner. Parker & Irwin, Bruce A. Little and Donald W. Hitzeman, San Bernardo, for Respondents Constitution State Service Company and Target Stores. No appearance for Respondent Workers' Compensation Appeals Board. George & Harowitz and Steven Harowitz, Los Angeles, for Real Party in Interest.

INTRODUCTION

Petitioner Horizon Medical Group sought a writ of review to have this court examine an order denying reconsideration issued by respondent Workers' Compensation Appeals Board. We issued a writ of review returnable before this court. The writ allowed responsive pleadings to address one of the issues raised by petitioner, that of notice of the applicability of Labor Code section 4062.

STATEMENT OF FACTS

On July 19, 1992, real party in interest, Aileen Angulo (Angulo) injured her back and neck while performing her duties as a cashier for Target Stores. Target Stores provided treatment for her at Foothill Medical Clinic (Foothill). She received pain medication and a neck brace. Three days later, she returned and was given an injection of muscle relaxants for her back and additional medication. She returned to work on modified duty on July 24, but she continued to experience pain. She returned to Foothill, where she was given a back brace and additional medication.

Still suffering pain and dissatisfied with her treatment at Foothill, Angulo contacted an attorney, who referred her to petitioner Horizon Medical Group (Horizon). On August 3, Dr. Francis X. Yubero examined Angulo. The following day, Angulo's attorney wrote to Target Stores' adjusting agency, respondent Constitution State Service Company (Constitution),1 advising it that Angulo had selected Dr. Yubero as her “free choice” treating physician pursuant to Labor Code section 4600 et seq. and requesting payment pursuant to Labor Code section 4603.2; the attorney included with the letter a copy of Dr. Yubero's first report of occupational injury or illness.

On August 19, 1992, Constitution wrote to Angulo's attorney indicating it had accepted Angulo's claim for temporary total disability benefits until the time she was released to modified duty, and no further disability payments would be made. If the attorney would like to utilize an agreed medical examination (AME), he should contact Constitution; otherwise, Constitution would arrange its own qualified medical examination (QME) pursuant to Labor Code section 4062.

Angulo submitted to a QME on October 30, 1992. The examiner, Dr. Raymond K. Zarins, found Angulo was permanent and stationary. She had slightly reduced neck and lumbar range of motion and pain on tandem straight leg raising. Her pain was minimal to slight, and over-the-counter pain medication should be sufficient to control it. She required no work restrictions. Her injury was attributable to the July 19 incident.

Horizon continued to treat Angulo through November 16, 1992, then returned her to unrestricted duty. It filed a lien with Constitution for its services. On November 18, Constitution wrote to Horizon objecting to the lien “in its entirety as there appears to be noncompliance with Labor Code Section 5401 and 4903.1(c) or Section 10770 of Title 8 in the Labor Code. Constitution referred Horizon to the Workers' Compensation Appeals Board (WCAB) if it disagreed with Constitution's position.

On January 14, 1993, Dr. Mary Michel of Horizon prepared an orthopedic permanent and stationary report on Angulo. Dr. Michel concluded Angulo had persistent and intermittent slight to moderate neck and back pain with certain activities and should be prophylactically precluded from these activities. Otherwise, she could work full-time. Her disability was directly attributable to her industrial injury.

Horizon again filed a lien with Constitution. On March 16, 1993, Constitution wrote to Horizon objecting to the lien “in its entirety as there appears to be noncompliance with Labor Code Sections 5401, 4903.1(c) and 4600, or Section 10770 of Title 8 in the Labor Code.” Again, Constitution referred Horizon to the WCAB if it had any disagreement with Constitution's position. In May, Angulo applied to the WCAB for adjudication of claim.

On June 16, 1993, Angulo was in an automobile accident. Her automobile was rear-ended by another automobile on the freeway. She was wearing a shoulder harness/lap seat belt, but she was thrown backward and forward with such force as to break the seat in which she was sitting. She suffered immediate neck and back pain. She sought emergency medical treatment. She was given pain and anti-inflammatory medications and muscle relaxants and was told to take at least four days off from work. She attempted to return to work a week later, though still in pain and taking medication, but was sent home by her employer. She returned to work a week later, even though her symptoms persisted.

Angulo returned to Horizon for treatment on August 16, 1993. Dr. Michel noted Angulo's previous treatment for her work-related injury and that “[a] pproximately eight or nine months post injury her symptoms resolved.”

The mandatory settlement conference prior to the hearing on Angulo's application for adjudication of claim to the WCAB had been scheduled for July 26, 1993. Horizon was notified of the hearing. A summary of settlement conference proceedings indicates Horizon was represented at the settlement conference. The summary states as an issue: “Applicant objects to QME Dr. Zarin's [sic] report, since AME offer of 8-19-92 was made prematurely. Applicant was not P[ermanent] & S[tationary] & was treating with Horizon & was not released until 1-14-93. Labor Code 4062.”

Trial was set for December 6, 1993, then continued to March 2, 1994. On March 2, Angulo's claim was dismissed due to her failure to appear at the hearing. Horizon objected to dismissal of its claim. It was then granted a hearing.

The hearing on Horizon's lien claim was held on March 13, 1995. Workers' Compensation Judge Michael A. Martinez found the medical examinations performed by Horizon violated Labor Code section 4062; therefore, its lien claim was disallowed.

Horizon and Angulo petitioned the WCAB for reconsideration. In a report and recommendation on the petitions, Judge Martinez explained Angulo failed to object in writing to the determination by her original treating physician that she was permanent and stationary, as required by Labor Code section 4062, subdivision (a), before she obtained treatment from Horizon. Additionally, Judge Martinez did not find Angulo's testimony as to residual pain from her industrial injury credible; he felt it and a medical report by Dr. Michel were affected by her civil lawsuit arising from her automobile accident.

Horizon claimed that Constitution failed to raise Labor Code section 4062 at trial and therefore waived it as a defense. Judge Martinez found the section was raised in the summary of evidence and in the summary of settlement conference proceedings. Moreover, pursuant to title 8, section 10492 of the California Code of Regulations, the pleadings could be amended to conform to proof. The judge therefore recommended that the petitions be denied. The WCAB followed Judge Martinez's recommendation and denied the petition.

CONTENTION

Petitioner Horizon contends it was deprived of due process of law, in that it did not receive notice before trial that noncompliance with Labor Code section 4062 was being raised as a defense. For the reasons set forth below, we agree.

DISCUSSION

At the time of injury, Labor Code section 4062 (section 4062) applied to an employee represented by an attorney. (Subd. (a).) It provided in subdivision (b) that “[i]f either the employee or employer objects to a medical determination made by the treating physician concerning the permanent and stationary status of the employee's medical condition, the employee's preclusion or likely preclusion to engage in his or her usual occupation, the extent and scope of medical treatment, or the existence of new and further disability, the objecting party shall notify the other party in writing of the objection. Parties shall seek agreement with the other party on a physician, who need not be a qualified medical evaluator, to prepare a report resolving the disputed issue. If no agreement is reached within 10 days, or any additional time not to exceed 20 days agreed upon by the parties, the parties may not later select an agreed medical evaluator. Evaluations obtained prior to the period to reach agreement shall not be admissible in any proceeding before the appeals board. After the period to reach agreement has expired, each party may select a qualified medical evaluator to conduct the formal medical evaluation․” (Italics added.) Section 4062 also provided that “[n]o disputed medical issue specified in subdivision (b) may be the subject of an application for adjudication of claim unless there has first been an evaluation by an agreed or qualified medical evaluator.” (Subd. (e).)

The trial judge found Angulo failed to object in writing to the determination by her original treating physician that she was permanent and stationary, as required by section 4062, subdivision (a),2 before she obtained treatment from Horizon. Inferably, that failure precluded adjudication of Horizon's claim under subdivision (e) of section 4062. The question is whether Horizon was given notice prior to the hearing on its lien claim that the claim might be denied based on its failure to comply with section 4062.

Lien claimants are entitled to due process in workers' compensation proceedings. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd. (1994) 26 Cal.App.4th 789, 803.) Due process includes “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections․ Thus, due process requires that a lien claimant be informed of the scope and purpose of a hearing that may affect its rights or liabilities․” (Id. at pp. 803-804, citations and internal quotations omitted.) The lien claimant must receive notice of the issues to be raised at the hearing on its claim. (Id. at p. 804.)

Nothing sent to Angulo or Horizon or filed by Constitution mentioned section 4602. The workers' compensation judge relied on two documents to show Horizon had notice that compliance with section 4602 would be at issue at the hearing. The Minutes of Hearing (and) Summary of Evidence lists among the issues to be addressed: “[l]iability for medical-legal expense” and “[l]ien claims of record.” A summary of settlement conference proceedings lists as an issue: “Applicant objects to QME Dr. Zarin's [sic] report, since AME offer of 8-19-92 was made prematurely. Applicant was not P[ermanent] & S[tationary] & was treating with Horizon & was not released until 1-14-93. Labor Code 4062.”

The Minutes of Hearing (and) Summary of Evidence does not specify the bases for Constitution's challenge to the claim of liability for medical-legal expense incurred with Horizon or Horizon's lien claim, let alone mention section 4062. Under the circumstances, the general statement of issues did not provide Horizon with notice reasonably calculated to apprise it that compliance with section 4062 would be at issue at the hearing. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd., supra, 26 Cal.App.4th at p. 803.)

The summary of settlement conference proceedings lists section 4062 in connection with Angulo's objection to Dr. Zarins' report, not in connection with any objection on behalf of Constitution. Thus, it did not give Horizon notice Constitution was challenging its claim under that section. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd., supra, 26 Cal.App.4th at p. 803.)

Inasmuch as Horizon was not apprised that compliance with section 4062 was at issue at the hearing, it was deprived of the opportunity to present evidence or argument on the issue. It thus was deprived of a fair hearing, requiring reversal of the decision against it. (Beverly Hills Multispecialty Group, Inc. v. Workers' Comp. Appeals Bd., supra, 26 Cal.App.4th at p. 806.)

Respondent WCAB's August 21, 1995 order denying reconsideration is annulled and the matter is remanded for further proceedings consistent with this opinion.

FOOTNOTES

1.  Target Stores are self-insured.

2.  Subdivision (a) at the time of the hearing contained the provisions of former subdivision (b).

SPENCER, Presiding Justice.

ORTEGA and MASTERSON, JJ., concur.

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