LOUIS JONES, Applicant,
v.
TARGET STORES; CONSTITUTION STATE SERVICES, Defendants.
No. PAS 0040032
California Workers Compensation Decisions
Workers’ Compensation Appeals Board State of California
October 26, 1998
OPINION AND ORDER
GRANTING RECONSIDERATION
AND DECISION AFTER
RECONSIDERATION
RICHARD P. GANNON JUDGE
Defendant
employer seeks reconsideration of the Findings of Fact and
Order issued August 11, 1998, in which Workers'
Compensation Administrative Law Judge (WCJ) George C.
Rothwell found that defendants "are to pay to lien
claimant Integrative Industrial [II] the sum of $666.16 which
may be adjusted to reflect credit for any subsequent payments
made and/or any additional services rendered." WCJ
Rothwell found that II had not violated Labor Code section
139.3 (§ 139.3), and therefore ordered defendant to pay
the lien claim in an adjusted amount.
Defendant
contends error, asserting that Dr. Peter Lucero,
applicant's physician and a salaried staff physician
employed by II, illegally referred applicant for physical
therapy (PT) to be performed at the same clinic where Dr.
Lucero was employed, by therapists who were also employees of
II. Defendant alleges that it has no duty to pay II"s
lien claim for the PT it provided because the referral was
unlawful pursuant to § 139.3 and Labor Code section
139.31(e) (§ 139.31(e)).
Based
on the record, and for the reasons set forth below, we will
grant reconsideration, rescind the decision of August 11,
1998, and issue a substitute decision finding that defendant
is not liable for II's lien claim. We will also take this
opportunity to note that § 139.31(e), as presently
stated, simply omits the word "shall" in the phrase
referring to the need for preauthorization.
I.
The
facts disclose that applicant Louis Jones, a stocker born
March 15, 1998, sustained an admitted industrial injury to
his low back, left foot and left leg on December 16, 1995.
Defendant voluntarily provided benefits, including medical
treatment. Applicant subsequently selected Dr. Lucero of the
Integrative Industrial and Family Practice Medical Clinic
(II) as his free-choice primary treating physician. Dr.
Lucero ordered PT for applicant, and referred him to the
therapists employed by II, his own employer.
On
March 25, 1996, defendant wrote Dr. Lucero authorizing
treatment but requesting that it be contacted for
authorization for referrals for PT, diagnostic studies, and
similar procedures. In its letter, defendant first raised the
issue of § 139.3. Defendant raised the same statutory
issue in subsequent correspondence dated April 9, 1996, May
30, 1996, August 30, 1996, and September 24, 1996 and also
requested the names and qualifications of the people
providing PT, as well as Dr. Lucero's qualifications and
curriculum vitae (CV). Defendant did not receive any
response(s) to these requests.
On
November 13, 1996, defendant filed a Motion to Disallow
II's lien claims in their entirety, and to strike IPs
medical reports, based upon II's alleged failure to
produce the requested information (see Lab. Code §4628
(e) (k); § 139.31(e)).
On
November 16, 1996, a Mandatory Settlement Conference (MSC)
was held and the parties prepared Stipulations and Issues in
which defendant again raised the issue of IPs alleged
violation of both § 139.3 and § 4628(k). The matter
was continued on...
