No Attorney's Fees For Following UR

Smith v. Workers Comp. Appeals Bd. (2009) 46 Cal. 4th 272 [74 Cal. Comp. Cases 575]:  The Supreme Court of California has once again strictly interpreted the Labor Code in favor of defendants.  In this matter the WCAB considered the question of whether an employer’s denial of a specific medical treatment request made under a future medical care award could to an award of applicant’s attorney’s fees.  The Court concluded that an employer may safely dispute a request for a specific medical treatment (in this case using utilization review) under a prior award without fear of paying attorney’s fees.

At issue was interpretation of Labor Code section 4607 which provides: ''Where a party to a proceeding institutes proceedings to terminate an award made by the appeals board 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 fees at issued would be paid by the employer at an hourly rate rather than from any proceeds to the injured worker.  Applicant’s argued that the denial of a treatment request constituted a “constructive” petition to terminate and that reason and equity required expanding section 4607.

The Supreme Court disagreed.  It noted quite clearly that denial of a specific treatment request was not a challenge to the entitlement of any treatment.  Instead it was a challenge to interpretation of the award.  The question was not WHETHER but rather WHAT future medical treatment was required to cure or relieve.

The Court rejected the equity arguments on several grounds.  First it explained the Legislature in enacting the utilization review system (Lab. Code, § 4610) could have expanded section 4607 as well but chose not to.  The Court refused to change the statute for them.  The Court also explained that Labor Code section 5814.5 (see Ramirez v. Drive Financial Services (2008) 73 Cal. Comp. Cases 1324 [en banc]) provides injured workers with hourly attorney’s fees when employers “unreasonably” refuse treatment under a future medical award.

The decision constitutes another blow to the already beleaguered applicant’s bar.  It also reaffirms a common sense approach.  Employers who follow the law will not be punished.  Those who do not will be. 

Decision filed May 11, 2009.

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