Supreme Court of California Justia
Citation 46 Cal. 4th 272, 206 P.3d 430, 92 Cal. Rptr. 3d 894

Smith v. WCAB

Filed 5/11/09

IN THE SUPREME COURT OF CALIFORNIA

DWIGHT SMITH,
Petitioner,
S150528
v.
Ct.App. 2/6 B190054
WORKERS’ COMPENSATION
APPEALS BOARD and DEPARTMENT
(W.C.A.B. Nos.
OF CORRECTIONS AND
GRO 16225, 16226,
REHABILITATION, JUVENILE
16352)
JUSTICE et al.,
Respondents.
___________________________________ )
)
DAVID AMAR,
Petitioner,
v.
Ct.App. 2/6 B190655
WORKERS’ COMPENSATION
APPEALS BOARD and MEL CLAYTON )
(W.C.A.B. No.
FORD et al.,
GOL 89438)
)
Respondents.

In these consolidated workers’ compensation cases, we consider the scope
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
1

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.”
(Lab. Code, § 4607.1)
Petitioners obtained awards for future treatment of their industrial injuries.
Sometime thereafter, they submitted medical treatment requests, but their
employers’ insurance carrier disputed their entitlement to the requested care.
Petitioners initiated proceedings to obtain the treatment and, ultimately, were
determined to be entitled to the requested care. The insurer thereafter authorized
the treatment requests. Petitioners subsequently sought attorney fees pursuant to
section 4607. Based on the statutory language, the Workers’ Compensation
Appeals Board (Board) denied the fee requests, but the Court of Appeal reversed.
We granted review to resolve whether section 4607 permits an award under these
circumstances. In light of the statute’s unambiguous language, we conclude it
does not. An employer or insurer that disputes a specific treatment request cannot
be said to have “institute[d] proceedings to terminate an award . . . for continuing
medical treatment . . .” (§ 4607). Accordingly, we reverse the contrary judgment
of the Court of Appeal.
I. FACTS AND BACKGROUND
Smith’s Request for Medical Treatment
Dwight Smith sustained industrial injuries from cumulative trauma to his
right shoulder, neck and psyche while working for the former California Youth

1
All further unlabeled statutory references are to the Labor Code.
2

Authority (now the Juvenile Justice section of the Department of Corrections and
Rehabilitation).2 In 1997, by stipulation, Smith was awarded partial permanent
disability indemnity and future medical treatment.
Eight years later, State Compensation Insurance Fund (SCIF) refused to
authorize a request for epidural injections to his back. Smith contacted the
attorney who filed his original workers’ compensation claim and the attorney
sought utilization review (§ 4610). Pursuant to court order, Smith was examined
by an agreed medical examiner, who concluded he needed the injections to relieve
his back pain, which was precipitated by his industrial injuries. SCIF authorized
the injections without a formal hearing.
Citing section 4607, Smith subsequently sought attorney fees. The
workers’ compensation judge denied the request, concluding the statute did not
authorize an award because SCIF had not instituted proceedings to terminate
Smith’s award of medical treatment. In a split decision, the Board denied Smith’s
petition for reconsideration. The majority concluded fees would be available to an
applicant who is forced to challenge an insurer’s complete refusal to authorize
future treatment covered by an award. But, because SCIF disputed only part of
Smith’s care, the statute did not authorize an award of fees.
Amar’s Request for Medical Treatment
Amar sustained an injury to his right foot while working as a car salesman
for Mel Clayton Ford. In 2004, by stipulation, Amar was awarded partial
permanent disability indemnity and future medical care. Amar thereafter received
treatment for weight loss and diabetes, both of which treatments were related to
alleviating his foot injury.

2
The factual and procedural history is largely taken from the Court of
Appeal’s opinion.
3

Based on further utilization review, SCIF refused to pay for additional
medical care for the diabetes or weight loss program. Amar, assisted by the
attorneys who had filed his original workers’ compensation claim, instituted
proceedings to obtain the sought treatment. A workers’ compensation judge found
the weight loss program remained medically necessary to relieve the effects of the
injury, but that continued treatment for diabetes was unnecessary for that purpose.
The judge ordered the weight loss program reinstated.
Citing section 4607, Amar sought an award of attorney fees. The workers’
compensation judge ruled the statute was inapplicable and denied the request. On
reconsideration, the judge found SCIF had made a good faith denial of medical
care, had not refused to provide necessary medical care or engaged in
unreasonable delay in providing care, and had not improperly denied previously
awarded treatment. The judge recommended section 4607 fees be denied. The
Board adopted the workers’ compensation judge’s report, and denied
reconsideration.
Smith and Amar filed petitions for review. The Court of Appeal granted,
and consolidated, the two petitions. It reversed the Board’s decisions and
concluded section 4607 authorizes an award of attorney fees to an employee who
successfully challenges an employer or insurer’s denial of a specific request for
medical treatment. We granted respondents’ petition for review.
II. DISCUSSION
We independently review the construction of workers’ compensation
statutes. (State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2008) 44
Cal.4th 230, 236, fn. 6.) We typically give great weight to the Board’s
construction of the statutes it is charged to enforce and interpret; we will, however,
annul clearly erroneous interpretations. (Ibid.)
4

When interpreting any statute, it is well-settled that we begin with its words
“because they generally provide the most reliable indicator of legislative intent.”
(Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) If the language is clear and
unambiguous, there is ordinarily no need for judicial construction. (Murphy v.
Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) In construing a
provision, “we presume the Legislature meant what it said” and the plain meaning
governs. (People v. Snook (1997) 16 Cal.4th 1210, 1215.) We remain mindful,
however, that workers’ compensation statutes are to be liberally construed in favor
of the injured worker. (§ 3202; Claxton v. Waters (2004) 34 Cal.4th 367, 373.)
With these principles in mind, we consider the scope of section 4607.
The statutory language is unambiguous. It only authorizes an award of
attorney fees when a party “institutes proceedings to terminate an award . . . .”3
(§ 4607, italics added.) Petitioners nonetheless argue the language also permits an
award of fees to an employee who successfully challenges the denial of a
particular treatment request. We disagree. When a party institutes termination
proceedings, it challenges the continuing necessity for the Board’s award of future
treatment. By contrast, when an employer or insurer denies a specific treatment
request, it challenges whether the sought medical care is “reasonably required to
cure or relieve the injured worker from the effects of his or her injury . . . .”
(§ 4600, subd. (a).) The difference between the two concepts is illustrated by our
decision in Barnes v. Workers’ Compensation Appeals Board (2000) 23 Cal.4th
679 (Barnes).

3
While section 4607 does not explicitly state that employers or insurers are
the only ones that can initiate termination proceedings, it is difficult to imagine an
employee instituting proceedings to terminate his or her own award of treatment.
5

In that case, an injured employee obtained an award for future treatment in
1982. (Barnes, supra, 23 Cal.4th at p. 682.) Thirteen years later, after an agreed
medical examiner concluded the employee’s continuing pain was not traceable to
the original injury, the employer and its insurer filed a petition to terminate the
award. (Id. at pp. 682-683.) The workers’ compensation judge granted the
petition and the Board and the Court of Appeal affirmed. (Id. at pp. 683-684.)
We reversed, explaining that section 5804, which contains a five-year statute of
limitations for rescinding, altering, or amending an award, deprived the Board of
jurisdiction. (Barnes, supra, 23 Cal.4th at p. 686.) We noted, however, that while
it no longer had jurisdiction to terminate the award, the Board retained jurisdiction
“to determine whether a particular medical treatment . . . is justified to treat [an
employee’s] industrial injury.” (Id. at p. 687.) Thus, we distinguished between
efforts to terminate an award (which attack the validity of the Board’s
determination that an employee may need future medical treatment) and the denial
of a specific treatment request (which challenges the necessity of a particular
course of medical care). (Id. at p. 688.)
In the cases at issue here, it is clear the insurer was disputing specific
requests rather than attacking petitioners’ awards of future treatment. Smith, for
example, was originally awarded treatment for injuries to his right shoulder, neck,
and psyche. A dispute subsequently arose as to whether epidural injections to his
back were covered by the award. The insurer was not attempting to terminate all
future medical care. The same is true of Amar. He was originally awarded
treatment for injuries to his right foot. Based on further utilization review, the
employer challenged the necessity of two particular treatments: a weight loss
program and treatment for diabetes. As with Smith, the insurer was disputing
Amar’s specific requests, not challenging the validity of his award. Thus, the
6

plain language of section 4607 does not permit an award of attorney fees to
petitioners.
Petitioners claim such a narrow interpretation of section 4607 will result in
illogical consequences. In particular, petitioners argue it would be absurd to
award fees when an employer unsuccessfully seeks to terminate an award, but not
when an employer unsuccessfully denies a specific treatment request. Such a
construction, petitioners warn, will encourage employers and insurers to simply
deny all treatment requests rather than institute termination proceedings so as to
avoid being forced to pay attorney fees.4 We are not persuaded for several
reasons.
First, it is not irrational that the Legislature might have elected to treat the
more dramatic step of seeking to terminate an award differently than disputes over
specific treatment requests. Termination of all medical treatment can have
predictably devastating consequences for an employee. The Legislature could
have reasonably decided (as the statutory language clearly suggests) to permit fee
shifting under section 4607 only when an employee has successfully resisted an
attempt to terminate his or her award for continuing treatment. Second, the
specter raised by petitioners ignores the existence of other statutes, such as section
5814.5, which require the Board to award fees when benefits have been
unreasonably delayed or refused.5 Indeed, petitioners’ construction of section

4
We note the Court of Appeal cited several of these considerations in
concluding section 4607 authorized an award here. However, such policy
concerns are more properly directed at, and considered by, the Legislature.
5
Section 5814.5 provides, “When the payment of compensation has been
unreasonably delayed or refused subsequent to the issuance of an award . . . , the
appeals board shall . . . award reasonable attorneys’ fees incurred in enforcing the
payment of compensation awarded.”
7

4607 is so expansive that it would make such statutes largely irrelevant as far as
the award of medical benefits is concerned. Third, the potential consequences
invoked by petitioners — employers issuing blanket denials of medical treatment
requests to avoid paying attorney fees — ignores the existence of the utilization
review process.
As we discussed in State Compensation Ins. Fund v. Workers’ Comp.
Appeals Bd., supra, 44 Cal.4th at pages 239-240, in response to skyrocketing
workers’ compensation costs, the Legislature recently established a utilization
review process for handling employees’ medical treatment requests. The process
was intended to provide “quality, standardized medical care for workers in a
prompt and expeditious manner.” (Id. at p. 241.) Employees submit requests for
medical treatment to their employer. “If the treatment request is straightforward
and uncontroversial, the employer can quickly approve the request . . . without any
need for additional medical review of the request.” (Ibid.) However, under the
statutory scheme, only an employer’s utilization review physician applying
approved criteria can modify, delay, or deny treatment requests — an employer
may not, on its own, object to a treatment request. (§ 4610, subds. (e) & (f).)
Further, the utilization review scheme contains a procedure for resolving
disputes over treatment requests that uses doctors, rather than judges, as the
adjudicators. (§§ 4610, subd. (g)(3)(A), 4062, 4062.1, 4062.2.) If an employee
disagrees with the utilization review physician’s decision to modify, delay, or
deny treatment, the employee can request review by an independent medical
evaluator who, after evaluating the evidence, decides whether the sought treatment
is necessary. (Ibid.) Thus, the dispute resolution process does not require the
employee to obtain counsel (although the employee is allowed to do so). Indeed,
holding out the prospect of attorney fees every time an employee successfully
challenges a denial of a treatment request would likely transform the utilization
8

review process, which was intended to be expeditious, inexpensive, and driven by
uniform standards and the recommendations of treating physicians, into a more
expensive, adversarial, and cumbersome process. In short, the utilization review
process renders highly unlikely the scenario petitioners invoke.6
Finally, the available legislative history of section 4607 is consistent with a
plain language interpretation. First, according to the Legislative Counsel’s Digest,
section 4607 permits the Board to award attorney fees when an employee
successfully resists “proceedings instituted to terminate [the] employee’s award
for continuing medical treatment . . . .”7 (Legis. Counsel’s Dig., Assem. Bill No.
138 (1973-1974 Reg. Sess.) 2 Stats. 1973, Summary Dig., p. 91, italics added.)
Nothing suggests the Legislature intended a broader interpretation. Second,
section 4607 was modeled after another attorney fees provision, section 4651.3.
(Assem. Com. on Finance and Insurance, Analysis of Assem. Bill No. 138 (1973-
1974 Reg. Sess.).) Section 4651.3 authorizes an award of fees when 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”

6
We note that this case does not present, and we do not consider, the
instance of an employer or insurer unilaterally refusing to pay for all further
medical treatment. An employer or insurer that decides for itself that an employee
no longer needs additional treatment and accordingly decides to deny all future
requests poses a different issue. At a minimum, such an employer or insurer risks
sanctions under previously discussed section 5814.5. Moreover, an employer or
insurer that fails to comply with the mandates of the utilization review process
risks the imposition of penalties under section 4610, subdivision (i).
7
Although the Legislative Counsel’s summary digests are not binding (State
ex rel. Harris v. PricewaterhouseCoopers, LLP (2006) 39 Cal.4th 1220, 1233,
fn. 9), they are entitled to great weight (California Assn. of Psychology Providers
v. Rank (1990) 51 Cal.3d 1, 17).
9

in section 4651.3, but only “terminate” in section 4607 suggests that it knew how,
if it so chose, to fashion a broader remedy.
Accordingly, in light of the unambiguous statutory language and the
legislative history, we hold that section 4607 authorizes an award of attorney fees
only to employees who successfully resist efforts to terminate their award of
medical treatment. It does not permit an award of fees to employees who
successfully challenge the denial of specific treatment requests.
III. DISPOSITION
The judgment of the Court of Appeal is reversed.
MORENO, J.

WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
10

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Smith v. Workers’ Compensation Appeals Board __________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 146 Cal.App.4th 1032
Rehearing Granted

__________________________________________________________________________________

Opinion No. S150528
Date Filed: May 11, 2009
__________________________________________________________________________________

Court:
County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:
William A. Herreras for Petitioner Dwight Smith.
Ghitterman, Ghitterman & Feld, Allan S. Ghitterman, Russell R. Ghitterman and Benjamin P. Feld for
Peititoner David Amar.

__________________________________________________________________________________

Attorneys for Respondent:
No appearance for Respondent Worker’s Compensation Appeals Board.

Robert W. Daneri, Suzanne Ah-Tye, Don E. Clark and David M. Goi for Respondents Department of
Corrections and Rehabilitation, Juvenile Justice, Mel Clayton Ford and State Compensation Insurance
Fund.
Raymond G. Fortner, Jr. County Counsel (Los Angeles), Patrick A. Wu, Assistant County Counsel, Leah
D. Davis, Principal Deputy County Counsel, Eugenia W. Der, Deputy County Counsel, Rita A.
Tchavdarian and Jason E. Waller, Associate County Counsel, for County of Los Angeles as Amicus Curiae
on behalf of Respondents Department of Corrections and Rehabilitation, Juvenile Justice, Mel Clayton
Ford and State Compensation Insurance Fund.

Law Offices of Saul Allweiss and Michael A. Marks for California Workers’ Compensation Institute as
Amicus Curiae on behalf of Respondents Department of Corrections and Rehabilitation, Juvenile Justice,
Mel Clayton Ford and State Compensation Insurance Fund.

Counsel who argued in Supreme Court (not intended for publication with opinion):
William A. Herreras
200 South 13th Street, Suite 212
Grover Beach, CA 93483
(805) 473-8550

Russell R. Ghitterman
Ghitterman, Ghitterman & Feld
126 East Carrillo Street
Santa Barbara, CA 93101
(805) 965-4540

Don E. Clark
State Compensation Insurance Fund
1275 Market Street, Room 399
San Francisco, CA 94103
(415) 565-1266

Leah D. Davis
Principal Deputy County Counsel
350 South Figueroa Street, Suite 601
Los Angeles, CA 90071
(213) 974-0062

Document Outline

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Petition for review after the Court of Appeal annulled decisions of the Board. This case presents the following issue: Does Labor Code section 4607, which authorizes the Board to award attorney fees to an applicant who successfully resists a proceeding instituted by his or her employer to terminate a prior award for medical treatment, authorize the Board to award attorney fees to an applicant whose employer has not instituted proceedings to terminate medical care but has refused to authorize medical treatment, thereby requiring the applicant to institute proceedings to obtain that treatment?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 05/11/200946 Cal. 4th 272, 206 P.3d 430, 92 Cal. Rptr. 3d 894S150528Review - Civil Appealclosed; remittitur issued

44 Cal. 4th 230
9 Cal. 4th 863
40 Cal. 4th 1094
16 Cal. 4th 1210
34 Cal. 4th 367
23 Cal. 4th 679


Parties
1Smith, Dwight (Petitioner)
Represented by William A. Herreras
Attorney at Law
P.O. Box 387
Grover Beach, CA

2Department Of Corrections & Rehabilitation (Respondent)
Represented by David M. Goi
State Compensation Insurance Fund
1275 Market Street, Room 399
San Francisco, CA

3Department Of Corrections & Rehabilitation (Respondent)
Represented by Don E. Clark
State Compensation Insurance Fund
1275 Market Street, Room 399
San Francisco, CA

4Department Of Corrections & Rehabilitation (Respondent)
Represented by Robert William Daneri
State Compensation Insurance Fund
1275 Market Street, Room 399
San Francisco, CA

5State Compensation Insurance Fund (Respondent)
Represented by Don E. Clark
State Compensation Insurance Fund
1275 Market Street, Room 399
San Francisco, CA

6State Compensation Insurance Fund (Respondent)
Represented by Robert William Daneri
State Compensation Insurance Fund
1275 Market Street, Room 399
San Francisco, CA

7State Compensation Insurance Fund (Respondent)
Represented by David M. Goi
State Compensation Insurance Fund
1275 Market Street, Room 399
San Francisco, CA

8Amar, David (Petitioner)
Represented by Russell R. Ghitterman
Ghitterman & Ghitterman
126 E. Carrillo Street
Santa Barbara, CA

9Amar, David (Petitioner)
Represented by Benjamin Paul Feld
Ghitterman & Ghitterman
126 E. Carrillo Street
Santa Barbara, CA

10Workers Compensation Appeals Board (Respondent)
Represented by Workers Compensation Appeals Board
P.O. Box 429459 (Attn: Writ Unit)
P.O. Box 429459 (Attn: Writ Unit)
San Francisco, CA

11Ford, Mel Clayton (Respondent)
Represented by Don E. Clark
State Compensation Insurance Fund
1275 Market Street, Room 399
San Francisco, CA

12California Workers Compensation Institute (Amicus curiae)
Represented by Michael Aaron Marks
Law Office Saul Allweiss
18321 Ventura Boulevard, Suite 500
Tarzana, CA

13County Of Los Angeles (Amicus curiae)
Represented by Leah D. Davis
Office of the Los Angeles County Counsel
350 S. Figueroa Street, Suite 601
Los Angeles, CA


Opinion Authors
OpinionJustice Carlos R. Moreno
ConcurChief Justice Ronald M. George, Justice Carol A. Corrigan, Justice Joyce L. Kennard, Justice Kathryn M. Werdegar, Justice Marvin R. Baxter, Justice Ming W. Chin

Disposition
May 11 2009Opinion: Reversed

Dockets
Feb 26 2007Petition for review filed
Dwight Smith, California Youth Authority, State Compensation Insurance Fund, Mel C. Ford respondents Robert W. Daneri, Counsel
Feb 27 2007Record requested
Via telephone Mary Rosas Both B190054 and B190665
Mar 1 2007Received Court of Appeal record
One doghouse.
Mar 1 2007Received Court of Appeal record
one manila jacket
Mar 8 2007Answer to petition for review filed
Dwight Smith, petitioner by William A. Herreras, counsel
Mar 19 2007Reply to answer to petition filed
California Youth Authority, et al., respondents by Robert W. Daneri, counsel
Apr 6 2007Answer to petition for review filed
David Amar, Real party in intererest by Ruseell R. Ghitterman, counsel
Apr 18 2007Petition for review granted (civil case)
George, C.J., was absent and did not participate. Votes: Moreno, ACJ., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ.
Apr 18 2007Letter sent to:
to counsel, re certification of interested parties or persons
Apr 24 2007Received:
letter from counsel for Real Party in Interest (State Compensation Isurance Fund) dated April 23, 2007, regarding the name used for the California Youth Authority in the petition for review and reply.
Apr 27 2007Certification of interested entities or persons filed
by counsel for the Respondent, Workers Compensation Appeals Board.
May 2 2007Certification of interested entities or persons filed
by counsel for petitioner Dwight Smith.
May 2 2007Certification of interested entities or persons filed
By counsel for Real Parties in Interest.
May 18 2007Opening brief on the merits filed
California Youth Authority, et. al., real parties in interest by Robert W. Danieri, counsel
Jun 6 2007Answer brief on the merits filed
Dwight Smith, petititoner by William A. Herreras, counsel
Jun 12 2007Request for extension of time filed
real party in interest requesting 24 days till July 20, 2007 to file reply brief on the merits. by David M. Goi, counsel.
Jun 18 2007Answer brief on the merits filed
Petitioner, David Amar by counsel, Russell R. Ghitterman.
Jun 19 2007Extension of time granted
to July 20, 2007 to file real party in interest (State Compensation Insurance Fund) reply brief on the merits.
Jun 25 2007Change of contact information filed for:
Benjamin Paul Feld
Jul 20 2007Reply brief filed (case fully briefed)
State Compensation Insurance Fund, respondent by David M. Goi, counsel
Jul 20 2007Received application to file Amicus Curiae Brief
County of Los Angeles [in support of respondents] Pincipal Deputy County Counsel Leah D. Davis [app w/i brief]
Jul 26 2007Permission to file amicus curiae brief granted
County of Los Angeles
Jul 26 2007Amicus curiae brief filed
County of Los Angeles in support of respondent's (California Youth Authority, et al.). Answer due within twenty days of the filiing of the brief.
Sep 21 2007Received application to file Amicus Curiae Brief
California Workers' Compensation Institute in support of respondents. by Michael A. Marks, counsel
Sep 25 2007Permission to file amicus curiae brief granted
California Workers' Compensation Institute
Sep 25 2007Received application to file Amicus Curiae Brief
The application of California Worker's Compensation Institue for permission to file an amicus curiae brief in support of respondents is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief.
Mar 11 2009Case ordered on calendar
to be argued on Tuesday, April 7, 2009, at 1:30 p.m., in Los Angeles
Mar 24 2009Application filed
Application to divide oral argument time, filed by Don E. Clark, counsel for respondent State Compensation Insurance Fund. Requesting to share 15 minutes of time with amicus curiae County of Los Angeles.
Mar 25 2009Filed:
Letter from Russel R. Ghitterman, counsel for petitioner Smith, requesting to divide oral argument time. Asking to share 15 minutes of time with co-petitioner Amar.
Mar 25 2009Order filed
The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to amicus curiae County of Los Angeles 15 minutes of respondents' 30-minute allotted time for oral argument is granted.
Mar 25 2009Order filed
The request of counsel for petitioners in the above-referenced cause to allow two counsel to argue on behalf of petitioners at oral argument is hereby granted. The request of petitioners to allocate to petitioner Smith 15 minutes and petitioner Amar 15 minutes of petitioners' 30-minute allotted time for oral argument is granted.
Apr 7 2009Cause argued and submitted
May 8 2009Notice of forthcoming opinion posted
May 11 2009Opinion filed: Judgment reversed
The judgment of the Court of Appeal is reversed. Opinion by Moreno, J. -----joined by George, C.J., Kennard, J., Baxter, J., Werdegar, J., Chin & Corrigan, JJ.
May 21 2009Note: Mail returned (unable to forward)
David M. Goi
Jun 16 2009Remittitur issued
Jul 1 2009Received:
Receipt for Remittitur from court of Appeal, Second Appellate District, Division Six

Briefs
May 18 2007Opening brief on the merits filed
California Youth Authority, et. al., real parties in interest by Robert W. Danieri, counsel
Jun 6 2007Answer brief on the merits filed
Dwight Smith, petititoner by William A. Herreras, counsel
Jun 18 2007Answer brief on the merits filed
Petitioner, David Amar
Jul 20 2007Reply brief filed (case fully briefed)
State Compensation Insurance Fund, respondent by David M. Goi, counsel
Jul 26 2007Amicus curiae brief filed
County of Los Angeles in support of respondent's (California Youth Authority, et al.). Answer due within twenty days of the filiing of the brief.
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 11, 2009
Annotated by Yosuke Koike

Facts:

One petitioner, Mr. Smith, sustained industrial injuries and awarded partial permanent disability indemnity and future medical treatment. After that, he requested additional remedy but it was refused to authorize by State Compensation Insurance Fund. Then he and his attorney sought utilization review (Labor Code §4610) and SCIF finally authorized the remedy. Mr. Smith sought attorney fees under Labor Code §4607, but the Workers’ Compensation Appeals Board rejected.

The other petitioner, Mr. Amar, sustained injury and awarded partial permanent disability indemnity and future medical treatment, too. After that, he started medical cares for the diabetes and weight loss program but these were refused to authorize by SCIF. Then he and his attorney instituted proceedings to obtain the sought treatments. The weight loss program was judged necessary. Mr. Amar sought attorney fees, too, citing Labor Code §4607, but the WCAB didn’t reconsider.

Procedural History:

Rejected by the WCAB, both Mir. Smith and Mr. Amar appealed. The Court of Appeal reversed the WCAB’s decisions and granted petitions. Two petitions were consolidated. Respondents appealed. Finally, the judgment of the Court of Appeal is reversed by the Supreme Court of California.

Issue:

This is a problem of scope of Labor Code §4607. The statutory language in Labor Code §4607 permits an award of attorney fees when a party “institutes proceedings to terminate an award… and is unsuccessful in such proceedings.” It is clear that employees are authorized to be paid attorney fees when a party “institutes proceedings to terminate an award”, but it is not clear if employees are authorized to be paid attorney fees when they successfully challenge the denial of a particular additional treatment request. Is it also permitted by the language, or not?

Holding:

Labor Code §4607 authorizes an award of attorney fees only to employees who successfully resist efforts to terminate their award of medical treatment. It does not permit an award of fees to employees who successfully challenge the denial of specific treatment requests.

Reasoning:

In the main opinion, Judge Moreno upheld that Labor Code §4607 authorizes an award of attorney fees only to employees who successfully resist efforts to terminate their award of medical treatment. There are four reasons.

First, it is not irrational that the Legislature might have elected to treat the more dramatic step of seeking to terminate an award differently than disputes over specific treatment requests.

Second, the specter raised by petitioners ignores the existence of other statutes, such as section 5814.5, which require the Board to award fees when benefits have been unreasonably delayed or refused.

Third, as the court discussed in State Comp. Ins. Fund v. Workers’ Comp. Appeals Bd. (2008) 44 Cal 4th 230, the Legislature established utilization review process, which contains a procedure for resolving disputes over treatment requests that uses doctors, rather than judges. In this review scheme, there is no need for an employee to hire attorney. The potential consequences invoked by petitioners ignores the existence of this utilization review process.

Forth, the available legislative history of section 4607 is consistent with a plain language interpretation. In section 4651.3, the Legislature used both “decrease” and “terminate”, but on the other hand, in section 4607, it used only “terminate”.