Laing v. WCAB (Kaiser Engineers)

Filed 6/22/07 Laing v. WCAB (Kaiser Engineers) CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

James Laing petitions for review (Labor Code,^[1] 5952) of the decision after reconsideration of the Workers Compensation Appeals Board (Board) amending the findings, award and order issued in his case. The Board held that [t]he spinal surgery recommended by [Laings] treating physician is not reasonably required to cure or relieve [Laing] from the effects of the injury. We hold that the Board improperly applied the American College of Occupational and Environmental Medicine guidelines (ACOEM guidelines) to conclude that the surgery was unnecessary, and that, on this record, the Board was required to remand the case for compliance with the second opinion procedures mandated by section 4062, subdivision (b).

Background

Laing sustained an industrial injury to his low back in 1987, while working for Kaiser Engineers (Kaiser). In January of 2006, his treating physician, Dr. Ball, recommended a surgical procedure. Kaiser objected to the procedure, and the parties selected an agreed medical examiner (AME), Dr. McCormack, for a second opinion. Subsequently, Laing withdrew from the AME agreement, but did attend the examination with Dr. McCormack. Dr. McCormack recommended no surgery.

At trial, Dr. McCormacks report was one of four medical opinions. The other three recommended some type of surgery. Acknowledging that section 4062, subdivision (b) required the parties to secure a second opinion from a physician randomly selected by the administrative director, the workers compensation judge (WCJ) nonetheless failed to follow the statute and issued a findings and award to include the surgery. Kaiser sought reconsideration, contending that Dr. McCormacks opinion should be followed as an AME opinion, or the parties should be required to secure a second opinion following the random selection procedures outlined in section 4062, subdivision (b).

The Board granted reconsideration and issued the order challenged here. The Board did not address the random selection procedures of section 4062. It considered the opinion of treating physician, Dr. Ball, as well as that of Dr. McCormack, implicitly rejecting Kaisers argument that Laings withdrawal from the AME agreement was nullified by his submission to the examination. The Board went on to rely on the ACOEM guidelines to reject the opinion of Dr. Ball and to adopt that of Dr. McCormack. It correctly noted that the ACOEM guidelines are presumptively correct on the question of the scope of medical treatment ( 4600, subd. (b), 4604.5, subd. (c); Sierra Pacific Industries v. Workers Comp. Appeals Bd. (2006) 140 Cal.App.4th 1498). It then acknowledged that the ACOEM guidelines do not specifically address Laings condition, a chronic condition, but instead address only acute low back conditions. Nonetheless, the Board applied the ACOEM guidelines and the presumption.

Discussion

As relevant here, section 4062, subdivision (b) provides: The employer may object to a report of the treating physician recommending that spinal surgery be performed within 10 days of the receipt of the report. If the employee is represented by an attorney, the parties shall seek agreement with the other party on a California licensed board-certified or board-eligible orthopedic surgeon or neurosurgeon to prepare a second opinion report resolving the disputed surgical recommendation. If no agreement is reached within 10 days, or if the employee is not represented by an attorney, an orthopedic surgeon or neurosurgeon shall be randomly selected by the administrative director to prepare a second opinion report resolving the disputed surgical recommendation. Examinations shall be scheduled on an expedited basis. The second opinion report shall be served on the parties within 45 days of receipt of the treating physicians report. If the second opinion report recommends surgery, the employer shall authorize the surgery. If the second opinion report does not recommend surgery, the employer shall file a declaration of readiness to proceed. . . .

Laing contends that Kaiser failed to timely object to Dr. Balls surgical recommendation. Alternatively, he argues that because he withdrew from the AME agreement, the WCJ was required to implement the second opinion random selection procedures of section 4062, subdivision (b). Kaiser responds that its objection to Dr. Balls recommendation was timely, and reiterates its argument, rejected by the Board, that Laings withdrawal from the AME agreement was nullified when he attended the examination.^[2]

At the outset, we reject Laings argument that Kaiser did not timely object to Dr. Balls surgical recommendation as required by section 4062, subdivision (b). The WCJ expressly found Kaisers objection timely, and the finding is supported by the record. Moreover, Laing waived the argument by his failure to raise it before the Board. He did not file a petition for reconsideration, and he failed to answer Kaisers petition. ( 5901, 5904, 5905.) Similarly, he failed to raise his further contention, that Dr. McCormacks report was inadmissible, before the Board.

Kaiser offers no authority for its argument that Laings withdrawal from the AME agreement was nullified by his submission to Dr. McCormacks examination. We decline to address it. (Cf. Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived].)

We, however, agree with Laing that the WCJ and the Board erred by failing to require the administrative director to randomly select a surgeon or neurosurgeon to render a second opinion. In addition, the Board erred in applying the ACOEM guidelines to his condition.

Section 4062, subdivision (b) by its terms requires the administrative director to randomly select an orthopedic surgeon or neurosurgeon for preparation of a second opinion report when, as here, the parties are unable to reach agreement on the selection of an AME. The language of the statute is mandatory. The Board acted in excess of its powers by ignoring it and failing to order that the matter be remanded to the WCJ for the random selection and subsequent proceedings.

In addition, the ACOEM guidelines do not address Laings condition. To the contrary, chapter 12 of the guidelines expressly concerns [r]ecommendations on assessing and treating adults with potentially work-related low back problems (i.e., activity limitations due to symptoms in the low back of less than three months duration) . . . . (ACOEM guidelines (2d ed. 2004) ch. 12, p. 287, italics added.) Consequently, the evidentiary presumption ( 4600, subd. (b), 4604.5, subd. (c)) never arose, and the Boards amended finding is not supported by substantial evidence. (Braewood Convalescent Hospital v. Workers Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.)

Disposition

The portion of the Boards decision amending the findings, award and order of September 25, 2006 is annulled. The matter is remanded to the Board with directions to issue a new decision after reconsideration remanding the matter for the random selection of a second opinion orthopedic surgeon or neurosurgeon by the administrative director. Petitioner shall recover his costs.

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Margulies, J.

We concur:

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Marchiano, P. J.

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Stein, J.

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^[1]All statutory references are to the Labor Code.

^[2]At oral argument, Kaiser also contended that Laings withdrawal from the AME agreement did not occur until after he had received Dr. McCormacks report. The record indicates otherwise. Laing withdrew from the July 31, 2006 examination in advance of it, on May 26, 2006.