Workers Compensation: No Fees Awardable Where An Employer Or Insurer Disputes A Specific Treatment Request For Applicant Employee Previously Awarded Future Industrial Injury Treatments

California Supreme Court Construes Scope of Labor Code Section 4607.

     Labor Code section 4607 provides that the Workers’ Compensation Appeals Board (WCAB) can assess reasonable attorney’s fees as a cost upon a party who unsuccessfully institutes proceedings to terminate an award of an employee/applicant for continuing medical treatment. The issue before the California Supreme Court was whether section 4607 allowed for fee recovery if a party unsuccessfully challenges a specific treatment request rather than requesting a termination of a future treatment award.

     In Smith v. WCAB, Case No. S150528 (Cal. May 11, 2009) (published), our state supreme court answered “no” to the issue. The statutory language was clear in only covering termination requests, which challenge the continuing necessity for the WCAB’s award of future treatment. By contrast, the specific treatment contest only challenges the reasonableness of the specific sought-after medical care—far different from a termination of care altogether. This result was buttressed by section 4651.3, which authorizes a fee award where an employer unsuccessfully files a petition alleging that an employee’s disability has decreased or terminated. “The fact that the Legislature used both ‘decrease’ and ‘terminate’ in section 4651.3, but only ‘terminate’ in section 4607 suggests that it knew how, if it so chose, to fashion a broader remedy.” (Slip Opn., at pp. 9-10.)

     This was a 7-0 decision authored by Justice Moreno.