FIORITO v. WORKERS COMPENSATION APPEALS BOARD OF THE STATE OF CALIFORNIA (1996)

Petitioner, Gwendolyn Fiorito, seeks a writ of mandate directing the superior court to set aside its order denying her motion to abate proceedings in two consolidated cases.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was employed by Bank of America on May 23, 1990, when she sustained industrial injuries due to the negligence of a third party. Bank of America was permissibly self-insured, with claims adjusted first by Bierly and Associates (Bierly), and later by Hertz Claims Management (Hertz).

Petitioner sought workers' compensation benefits, and was treated for some of her injuries by real party in interest, dental specialist Thomas Kalili. According to petitioner, Kalili knew she was claiming industrial injury.

Kalili and real party in interest Beverly Hills Medical Suite (BHMS), which petitioner asserts is under Kalili's control, sued petitioner in small claims court. Despite petitioner's protest that these matters were subject to the jurisdiction of the Workers' Compensation Appeals Board (WCAB), the matters were tried. Judgment was entered in favor of Kalili in the total amount of $5,039, and in favor of BHMS in the total amount of $2,500.

Petitioner appealed to the superior court, and both matters were set for trial de novo. On August 15, 1995, she filed a motion to abate both actions, and for judgment on the pleadings on the ground that the WCAB has exclusive jurisdiction over the actions. Petitioner pointed out that trial before the WCAB was set for November 20, 1995. Although the motions were denied, the superior court granted a continuance in each case to allow the WCAB trial to go forward. The court then consolidated both actions for trial on December 18, 1995. The November 20, 1995 WCAB trial date was continued at Kalili's request, and reset for April 3, 1996.

On December 12, 1995, petitioner filed this petition for writ of mandate requesting an order directing the superior court “to refrain from proceeding further against [her] in any manner relative to” the consolidated actions pending in the superior court.

II. CONTENTION

Petitioner contends the issues raised by Kalili and BHMS in their complaints, i.e., issues over payment of medical expenses incurred by petitioner, an injured worker, for treatment of industrial injuries, are within the exclusive jurisdiction of the WCAB.¹

III. DISCUSSION

Labor Code section 5304² provides: “The appeals board has jurisdiction over any controversy relating to or arising out of Sections 4600 to 4605 inclusive, unless an express agreement fixing the amounts to be paid for medical, surgical or hospital treatment as such treatment is described in those sections has been made between the persons or institutions rendering such treatment and the employer or insurer.”³

Bell v. Samaritan Medical Clinic, Inc. (1976) 60 Cal.App.3d 486 (Bell) is dispositive of the issue presented here. In Bell, the Court of Appeal held that the WCAB has exclusive jurisdiction to decide any controversy arising out of the medical treatment rendered injured employees whenever a physician undertakes to treat an industrially injured patient and the employer accepts liability. Bell also holds that such a physician may not (1) condition the rendition of treatment on the employee's agreement to pay the difference between the amount of the physician's charges and the amount paid by the workers' compensation insurance carrier, (2) bill injured employees for such difference, or (3) attempt to collect such difference from injured employees. (Id. at pp. 487-489.)

The record reveals that Kalili submitted reports to Bierly concerning his treatment of petitioner, and that payments were made to Kalili by Bierly and/or Hertz on behalf of the employer subsequent to petitioner's filing of her workers' compensation claim. This strongly suggests that the WCAB has exclusive jurisdiction over the superior court actions at issue here.

IV. DISPOSITION

This is a proper case for issuance of a peremptory writ in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) The matter having been briefed, issuance of an alternative writ would add nothing to the exposition of the issues.

Let a peremptory writ of mandate issue directing respondent to vacate its order of August 16, 1995, setting these matters for trial, and issue a new and different order holding these proceedings in abeyance until the WCAB proceedings have been concluded, and a decision entered therein. The temporary stay issued February 20, 1996, is vacated.

FOOTNOTES

FOOTNOTE.  

1.  Petitioner also asks that we direct the superior court to dismiss the actions. The correct procedure, we believe, is to direct the superior court to hold these actions in abeyance pending resolution of the WCAB hearing which, we have been advised, was held April 3, 1996. Upon entry of judgment in the WCAB matter, petitioner may move the superior court for dismissal of the action. Upon a showing that the issues involved in the actions now pending in the superior court were disposed of in the WCAB proceeding, dismissal would, of course, be mandated.

2.  All further statutory references are to the Labor Code unless otherwise indicated.

3.  Section 4600 mandates that employers/insurers provide “[m] edical, surgical, chiropractic, and hospital treatment” for industrially injured employees. The services of a dentist are included. (§ 3209.3 [ [ [provides that dentists are considered “physicians” within the meaning of the Workers' Compensation Act].)

THE COURT:* FN*  BOREN, P.J., and FUKUTO and NOTT, JJ.