Recently, the California Supreme Court addressed whether attorney fees under Labor Code Section 4607 are properly sought when the dispute involves only a specific medical treatment rather than the entire medical award. Specifically, the California Supreme Court focused on the following portion of Labor Code Section 4607:
where a party to a proceeding institutes proceedings to terminate an award made by the appeals boards to an applicant for continuing medical treatment and is unsuccessful in such proceedings, the appeals board may determine the amount of attorney’s fees reasonably incurred by the applicant in resisting the proceeding to terminate the medical treatment and may assess such reasonable attorney’s fees as a cost upon the party instituting the proceedings to terminate the award of the appeals board.
The California Supreme Court ruled in the consolidated cases, Smith v. Workers’ Compensation Appeals Board, and Amar v. Workers’ Compensation Appeals Board (consolidated by the Court of Appeal) (46 Cal4th 272 (2009)[92 Cal.Rptr. 3d 894]) that attorney fees are not proper when the post-award dispute involves specific treatment, as opposed to a dispute over future medical treatment in its entirety.
In Smith v. WCAB, the applicant sustained an industrial injury while working at the California Youth Authority. The parties stipulated to an award of partial permanent disability and future medical treatment. Eight years following the Stipulation, a dispute arose regarding whether epidural injections were necessary. The insurer refused to authorize the injections, prompting the applicant to seek legal assistance from the attorney who initially filed the initial claim. The attorney submitted the issue to the WCAB and received a court order allowing the injections. The attorney subsequently filed for attorney fees, pursuant to Labor Code 4607. As noted above, the WCAB denied the request and the attorney’s petition for reconsideration.
The applicant in Amar v. WCAB suffered an industrial injury to his foot. He stipulated to an award of partial permanent disability indemnity and future medical care. The future medical treatment consisted of weight loss and diabetes management programs; in an effort alleviate his foot injury. Following a Utilization Review, the insurer refused to pay for these programs. The applicant sought representation and received a court order allowing for treatment with a weight loss program. The attorney in Amar also sought attorney fees pursuant to Labor Code Section 4607, only to be denied by the WCAB.
The applicants in both Smith and Amar appealed the WCAB’s rulings. (See Ct.App B190054, B190655) The Court of Appeal reversed the WCAB’s decisions and concluded that Labor Code Section 4607 did allow for attorney fees when there is was a successful challenge to an employer or insurer’s denial of medical treatment. However, the California Supreme Court reversed this ruling finding the statutory language unambiguous and noting that attorneys are only eligible for fee under 4607, when the employer or insurer seeks to terminate the ENTIRE award, not when the insurer disputes specific medical treatment.
The petitioners argued that this narrow interpretation would cause inequitable consequences. Moreover, they asserted that disallowing attorney fees for disputed medical treatments would cause employers and insurers to deny all treatment requests, instead of engaging in proceedings to terminate the entire award. In response, the California Supreme Court reminded petitioners that the Legislature could have implemented a clause for fee shifting when an employee has resisted an attempt to terminate his award for continuing treatment. Further, the Court opined that other statutes, such as Labor Code Section 5814.5 allow for fees when benefits have been unreasonably delayed or refused, giving attorneys a different avenue to pursue fees. Finally, the Court pointed out that an employer’s blanket denial of medical treatment is not possible because Utilization is required and under Labor Code Section 4610, only a Utilization Review physician can modify, delay or deny treatment requests.
As such, under Labor Code Section 4607 attorney’s fees are not permitted for post-award disputes regarding specific medical treatment. While attorneys have remedies under other statues, such as Labor Code Section 5814.5 in appropriate circumstances, attorney fees under Labor Code Section 4607 can be sought only when the employer or insurer initiates proceedings to terminate the entire award of the appeals board.
