Ford v. Lawrence Berkeley Laboratory, 012797 CAWC, WCK 13904

• Case Date: January 27, 1997
• Court: California

CHARLES FORD, Applicant, v. LAWRENCE BERKELEY LABORATORY, Defendant. No. WCK 13904 California Workers Compensation Decisions Workers Compensation Appeals Board State of California January 27, 1997           OPINION AND DECISION AFTER RECONSIDERATION (EN BANC)          On July 29, 1996, the Board granted defendant's petition for reconsideration of a decision dated May 3, 1996, in which a workers' compensation referee (WCR) found (1) that applicant was entitled to a 10% penalty based on defendant's failure to pay further permanent disability advances after receipt of the summary disability rating, and (2) that defendant was liable for applicant's attorney's fee pursuant to Labor Code section 4064.          Because of the important legal issues presented, and in order to secure uniformity of decision, the Chairman of the Appeals Board, pursuant to majority vote of the Board, has reassigned this case to the Appeals Board as a whole for En Banc decision. Based upon review of the record and analysis of the applicable statutory provisions, the Board concludes that the WCR's imposition of a 10% penalty was correct, but that a worker's attorney's fee may only be assessed against his employer pursuant to Labor Code section 4064 where it is the employer who files the initial application for adjudication contesting the formal medical evaluation from a qualified medical evaluator selected from a three-member panel.          STATEMENT OF THE CASE          On January 15, 1991, applicant, a 58 year old sheet metal worker, sustained an industrial injury when he twisted his back while pulling on a metal sheet. He received initial treatment in the emergency room at John Muir Hospital and then was referred to an orthopedist, Dr. George Tischenko, for follow-up treatment. Defendant employer, through its adjusting agent, provided medical treatment and paid temporary disability benefits through March 19, 1991, when applicant returned to work.          On July 10, 1992, Dr. Tischenko reported that applicant's condition was permanent and stationary. The doctor stated:

"... He occasionally has some left leg calf tingling but does not have any permanent symptoms. He has rare back pain. He is now in a more sedentary position where he has minimal symptoms. The patient's neurological examination is unremarkable. ..."

         Following Dr. Tischenko's report, applicant requested further examination by a qualified medical evaluator (QME). The physician applicant selected from a panel of three was Dr. Charles Barnes. At some point during this period, defendant advanced $4,235.00 in permanent disability indemnity. It is not clear from the record whether those advances were made before or after receipt of Dr. Barnes' report.          On March 30, 1993, Dr. Barnes submitted a report which stated:

"The patient is permanent and stationary. Referring to the Guidelines for Work Capacity the patient fits into that category mid-way between E and F. His disability rating is a sum of loss of range of motion, neurological deficit and an established disc lesion."

         Following Dr. Barnes' report, a summary disability rating was obtained based on that doctor's report. The rating, as corrected, was 55-3/4 percent. Defendant objected to both Barnes' report and the summary rating.          On July 12, 1993, defendant wrote to the Industrial Medical Council (IMC) requesting "an additional consultation with another QME physician specializing in orthopedics." The IMC apparently took no action on this request. Thereafter, defendant attempted to schedule a medical examination by another orthopedist, under purported authority of Labor Code section 4050.          On November 29, 1993, applicant, then unrepresented, filed an Application for Adjudication of Claim because of the disagreement regarding defendant's liability for permanent disability benefits. On December 13, 1993, defendant filed an answer to applicant's application, along with a Petition for Pre-Application Discovery Order requiring applicant to appear for medical evaluation by Dr. Robert Blasier.          On March 11, 1994, the case came on for hearing before WCR Sauban-Chapla. At that hearing, the WCR expressed the opinion that applicant had been forced to file an application because of defendant's refusal to pay permanent disability benefits based on the QME's report. She therefore "interpret[ed] applicant's filing of the application as being done constructively on the part of the defendant." The WCR then went on to state that "while defendant's failure to continue to pay permanent disability advances may be in error in view of 4061(k), that is a question of penalty and I do not believe that it abrogates the rights [of defendant] under 4050 to an evaluation." Therefore, the WCR ordered applicant to appear for medical-legal evaluation by Dr. Blazier on April 22, 1994.          On March 31, 1994, applicant, represented for the first time by an attorney, filed a petition for reconsideration of the WCR's order or, alternatively, removal of the case to the Board. On May 31, 1994, the Board granted applicant's petition in order to study the legal issue involved. Thereafter, the Board filed a decision which concluded that Labor Code section 4050 was not intended to apply under the procedures set forth in Labor Code sections 4061 et seq. The Board decision left open the possibility that further evaluation might be proper under Labor Code section 5703.5(a).          On November 29, 1995, the Court of Appeal, First Appellate District, Division One, denied defendant's petition for review of the Board's decision. (See 60 Cal.Comp.Cases 1246.) The Court also denied applicant's request for appellate attorney's fees. However, in doing so, the Court cited Labor Code section 5814, which deals with the penalty for unreasonable delay or refusal of payment of compensation.          As of November 30, 1995, defendant resumed payment of perma­nent disability indemnity advances at a rate of $148.00 per week. However, no retroactive payments were made for the period between the date when permanent disability advances were terminated, and November 30, 1995, when such payments resumed.          On January 4, 1996, applicant requested further hearing on issues including permanent disability, penalty and attorney's fee. On March 6, 1996, applicant filed a Petition for Enhanced Compensation seeking three 10% penalties on his permanent disability benefits. On March 28, 1996, defendant filed a petition for Board appointment of a new QME under Labor Code section 5703.5. In its petition, defendant alleged that the prior QME, Dr. Barnes, was no longer in practice and unavailable to perform a re-evaluation of applicant.          On April 29, 1996, the case came on for trial before the same WCR. Issues included permanent disability, applicant's request for penalties, and applicant's request for an award of attorney's fees payable by defendant pursuant to Labor Code section 4064. Several medical reports were received into evidence, along with testimony of applicant, and the matter was submitted for decision.          On May 3, 1996, the WCR filed a decision finding, among other things, (1) that applicant's injury caused permanent disability of 45-1/2 percent, (2) that applicant was entitled to a single 10% penalty based on defendant's failure to pay permanent disability advances after the summary rating issued on Dr. Barnes' report, and (3) that defendant was liable for applicant's attorney's fee pursuant to Labor Code section 4064.          On May 28, 1996, defendant filed a petition for reconsidera­tion of the WCR's decision. In that petition, defendant contended (1) that the WCR's award of a 10% penalty was not justified, and (2) that the WCR had no authority to award attorney's fees against defendant under Labor Code section 4064 because the application for adjudication of claim had been filed by applicant, not by the employer. Initially, no verification was attached to defendant's petition. However, a verification dated May 28, 1996, was filed with the Board a few days thereafter.          On July 29, 1996, the Board granted defendant's petition for reconsideration in order to further study the facts and legal issues presented.          THE PENALTY ISSUE          At the time of applicant's injury, Labor Code section 4061 set forth detailed mandatory procedures for determining the extent of permanent disability and the need for continuing medical care. In the case of unrepresented workers, this procedure involved the worker's selection of a QME from a three-doctor panel assigned by the IMC. The chosen QME was required to...