Tam v. Permanente2/8/2001
onnection with her low back injury to be twenty-nine percent of the whole person. Kaiser obtained Dr. Sakoda's report by way of records deposition conducted on July 15, 1994.
Dr. Luke examined Tam on August 26, 1992, pursuant to the DLIR's July 7, 1992 order. Dr. Luke noted that Tam's "ranges of motion of the low back are quite restricted and unfortunately, they do not meet the validity criteria for rating purposes." Dr. Luke requested that Tam return for x-rays and to "recheck her ranges of motion," but, in a telephone conversation with Dr. Luke on August 28, 1992, Tam stated that, on her attorney's advice, she would not return. Dr. Luke's report concluded that, " s she did not meet the validity criteria, the best that one could do is to allow 5% impairment of the whole person for soft tissue injury."
On October 12, 1992, Tam's physician noted that her condition remained unchanged. On March 22, 1993, Kaiser requested a hearing in the DLIR in order to resolve the extent of Tam's permanent partial disability. After reviewing the record, including Dr. Luke's report, the DLIR ruled that Kaiser's request was premature, in light of the fact that Tam was participating in a vocational rehabilitation program.
On July 5, 1994, Tam returned to full-time work with another employer, whereupon her temporary total disability benefits terminated. On August 18, 1994, Tam's physician reported that her condition remained unchanged and that she was "surviving at her present job simply because desire is overcoming fatigue and pain . . . through sheer determination against the more reasonable dictates of medicine and good health"; in Tam's physician's view, "she should not work over a 24 hour week."
On April 3, 1995, Kaiser requested that the DLIR issue a second medical examination order to compel Tam to submit to an examination by Maurice W. Nicholson, M.D., explaining as follows: "We do not believe that there are any facts in controversy which affect the finding that the examination will facilitate the expedient disposition of the case or the present controversy regarding Claimant's entitlement to compensation." On April 5, 1995, the DLIR returned the request to Kaiser without action, directing Kaiser to "attempt to have claimant examined without an order."
On April 7, 1995, Kaiser renewed its request, responding to the DLIR's April 5, 1992 communication as follows:
Claimant was previously examined by Herbert K.N. Luke, M.D. at the request of Employer but, as Claimant would not agree to the examination by Dr. Luke, an order by the
Director was required. Claimant's counsel even took the extraordinary measure of appealing the Director's order to the Labor and Industrial Relations Appeals Board, although Claimant later withdrew her appeal. Although Claimant attended the August 26, 1992 examination by Dr. Luke under Order by the Director, Claimant failed to complete her examination and, at the recommendation and advice of her attorney, according to Claimant, would not submit to diagnostic x-ray testing. (See page 8, August 28, 1992 report of Dr. Luke attached hereto.) Thus, we have taken the precaution to timely request issuance of an order by the Director so that Claimant will attend the April 27, 1995 examination by Dr. Nicholson which is needed to complete Employer's investigation of this case.
Kaiser copied Tam's counsel regarding both of its April 3 and April 7 letters to the DLIR.
On April 13, 1995, the Director issued the medical examination order that Kaiser sought, finding Kaiser's April 7, 1995 request to be "reasonable" "after a review of the file." The order notified Tam that, should she refuse to submit to t
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