ORSON v. WORKERS COMPENSATION APPEALS BOARD

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Court of Appeal, Second District, California.

Wendy R. ORSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and North River Insurance Co., Respondents.

No. B093967.

Decided: February 21, 1996

Kumetz & Glick, Patricia Atkins, Barbara A. Kumetz and Fred J. Kumetz for Petitioner. Grancell, Lebovitz, Stander, Marx & Barns, Norin T. Grancell and Lawrence Kirk for Respondent North River Insurance Co. No appearance for Respondent Workers' Compensation Appeals Board.

The issue presented to us is whether the Workers Compensation Board (Board) properly rescinded findings and an order of the Workers Compensation Judge (WCJ) that an applicant be allowed medical treatment by a physician in Baltimore Maryland. Based on petitioner's offer, as hereafter noted, we annul and remand.

FACTS

Wendy Orson (petitioner), born December 11, 1944, was employed as a flight attendant by defendant Continental Airlines, insured by defendant North River Insurance Company (insurer), with claims adjusted by GAB Business Services.

On September 10, 1985, petitioner sustained an industrial back injury. She returned to work and on March 9, 1986, she reinjured her back. As a result of the injury to her back, Petitioner has been unable to return to work for over nine years and has undergone four back surgeries. She was treated by three separate doctors between 1986 and 1989: Dr. John Thompson, Dr. Edgar Dawson and Dr. Hillel Sperling. On October 12, 1989, applicant chose her fourth “free-choice” treating physician, S. Michael Tooke, M.D., then of Santa Monica.

Dr. Tooke performed two surgeries on petitioner in 1990 and 1991. When petitioner awoke from surgery on June 25, 1991, she experienced a right foot drop, a neurological impairment sustained as the result of the surgery. It was necessary to perform follow-up emergency surgery on July 4, 1991. Petitioner is still afflicted with foot drop to the present.

Dr. Tooke moved his practice to Johns Hopkins University in Baltimore, Maryland and petitioner remained under his care. On November 13, 1993, she flew to Baltimore to be examined by Dr. Tooke and fell in the Baltimore Airport, fracturing her left knee. She had to undergo an additional surgery to repair her knee.

In 1994, Dr. Tooke recommended further surgery to petitioner's back. At first, insurer contested the need for further surgery. Petitioner was examined by orthopedic surgeon Seymour Alban, M.D., and then by agreed medical examiner (AME) in orthopedics, Richard Masserman, M.D. Dr. Alban concluded that applicant needed further surgery, an additional back fusion. Dr. Masserman reluctantly agreed, stating in his report of May 2, 1994 that “one cannot help but wonder if any further surgery would be worthwhile since she has had so many already and the returns have not been that great. However, it appears that the majority of opinions among her treating and consulting physicians has been that one more attempt at exploration, decompression and fusion, as indicated, is advisable.” In addition, Dr. Masserman stated: “I can appreciate the patient's personal preferences for her treating physician, but I cannot agree that traveling to Baltimore is a part of the necessary treatment to cure or relieve her from the effects of her industrial injury since she can obtain as good and complete treatment, including surgery, here in Southern California at a number of different medical centers, as she can in Baltimore or anywhere else, and probably even near her home in Oregon.”

On August 8, 1994, insurer, through its counsel, advised petitioner's counsel by letter that insurer “is ready, willing, and able to provide her with this treatment [the surgery]. The only limitation is in accordance with Dr. Masserman's opinion that it be within a reasonable geographical area.” Insurer offered to provide treatment in California or Oregon but not in Baltimore, Maryland.

Petitioner then sought an order from the Board directing defendant insurer to provide her with the surgery by Dr. Tooke in Baltimore, Maryland. At one point she offered to pay her own transportation expenses in connection with the surgery, but ultimately sought funds for this purpose from the insurer.

Insurer resisted, and the matter was set for expedited hearing on January 18, 1995. The WCJ issued Findings, Award and Order, determining that “[petitioner] is in need of medical treatment and is entitled to continue the same with her treating physician, Dr. Tooke in Baltimore, Maryland.” Insurer petitioned for reconsideration, contending that the medical treatment provided by Labor Code section 4600 is limited to a “reasonable geographical area” as defined by Administrative Director (AD) Rule 9780(e), and that Baltimore, Maryland is outside that area. The WCJ recommended denial of reconsideration. She stated: “[Petitioner], here, has an extremely complicated medical history, has undergone two previous surgeries with Dr. Tooke, in whom she has trust and confidence. Under the circumstances, it is not unreasonable to allow her to continue her treatment with her treating physician.”

The Board rescinded the WCJ's decision, and issued a substitute decision finding that applicant is in need of further medical treatment to take place within California or Oregon, if she moves back, both of which are within a reasonable geographic area as defined by AD Rule 9780(e). The Board observed that “California clearly possesses numerous physicians, surgeons, and facilities capable of providing the same standard of care as was previously provided to applicant.” (Fn. omitted.) The Board also stated that “We acknowledge that the doctor-patient relationship is important, but applicant has not demonstrated that her relationship with Dr. Tooke is unique or is so critical in this case as to warrant extraordinary costs for travel and treatment with him․”

Petitioner now seeks review of the Board's decision. In her petition she alluded to an offer to pay her own travel, lodging and board to be able to have Dr. Tooke do the surgery in Baltimore. At oral argument we asked petitioner's counsel whether she was still offering to pay her own travel, lodging and board, exclusive of the lodging and board required by any in-hospital stay related to the surgery. Counsel replied in the affirmative. We then asked counsel for the insurer to address what hardship would fall upon his client if petitioner took care of the referenced costs. He candidly advised us that under those conditions he could not urge that his client would suffer a substantial hardship if petitioner were treated in Baltimore.

DISCUSSION

Labor Code section 4600 provides, in pertinent part, that “[m]edical, surgical, chiropractic, and hospital treatment ․ that is reasonably required to cure or relieve from the effects of the injury shall be provided by the employer․ After 30 days from the date the injury is reported, the employee may be treated by a physician of his or her own choice or at a facility of his or her own choice within a reasonable geographic area.” The purpose of this section was described in Derrick v. Workers' Comp. Appeals Bd. (1984) 159 Cal.App.3d 451, 454: “In 1975, the Legislature modified the provisions of the workers' compensation law relating to medical and hospital care of an injured employee by shifting from the employer to the employee the right, with certain limitations, to control medical treatment. [Citations.]”

If the employee has chosen the treating physician and the employer desires a change, Labor Code section 4603 provides the necessary authority as follows: “If the employer desires a change of physicians or chiropractor, he may petition the administrative director who, upon a showing of good cause by the employer, may order the employer to provide a panel of five physicians, or if requested by the employee, four physicians and one chiropractor competent to treat the particular case, from which the employee must select one.”

Among the grounds upon which an employer can base a request that the injured worker select another doctor is that the employee-selected physician or facility is not within a reasonable geographic area. California Code of Regulations, title 8, article 5, section 9780, subdivision (e) provides: “‘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.”

In this instance, the WCJ made findings that petitioner had “an extremely complicated medical history, has undergone two previous surgeries with Dr. Tooke, in whom she has trust and confidence. Under the circumstances, it is not unreasonable to allow her to continue her treatment with her treating physician.” The Board relied upon the statement by Dr. Masserman that petitioner could obtain “as good and complete treatment, including surgery, here in Southern California at a number of different medical centers” in order to reject the findings of the WCJ.

With the concession by petitioner that she will pay her own travel, lodging and board, except that occasioned by an in-hospital stay resulting from the contemplated surgery, there is no basis for her not to be treated by Dr. Tooke. The fact of the matter is that Dr. Tooke performed the last two back surgeries and has a working knowledge of petitioner's problems. A new surgeon would have to obtain all prior records of petitioner and do a new workup to plan the surgery. The WCJ's findings imply an acknowledgment that Dr. Tooke is in a better situation than a new surgeon to undertake the surgery. In lieu of petitioner's concession to absorb the costs, as noted above, we agree.

DISPOSITION

The order of the Board rescinding the decision of the WCJ is annulled and the matter is remanded to the Board for further proceedings consistent with this opinion.

HASTINGS, Associate Justice.

VOGEL (C.S.), P.J., and EPSTEIN, J., concur.

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