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Doctors Medical Center of Modesto v. Workers' Compensation Appeals Board12/15/2005
THE COURT
Doctors Medical Center of Modesto (Medical Center) petitions for a writ of review contending the decision the Workers' Compensation Appeals Board (WCAB) erred in awarding Jessica Bonar (Bonar) a Tempur-Pedic mattress overlay and pillow by failing to follow the appropriate medical guidelines, improperly preventing cross-examination of Bonar, and issuing a decision lacking substantial evidence. We will deny the petition.
BACKGROUND
Bonar worked in collections and data entry for the Medical Center when she sustained an admitted industrial injury to her right ankle and lower back on October 28, 2002. At an expedited disability hearing in September 2004, the parties submitted medical reports from Bonar's primary treating physician, Dr. Frank Fine, and the Medical Center's qualified medical examiner, Dr. John Devor, on the limited issue of determining Bonar's "entitlement to medical treatment and, more specifically, the reasonableness and necessity of Dr. Fine's prescription for a Tempur-Pedic mattress overlay and a Tempur-Pedic pillow." The Workers' Compensation Administrative Law Judge (WCJ) denied as irrelevant the Medical Center's request to cross-examine Bonar on the issue of what type of bed and pillow she then used.
In mid-October 2004, the WCJ found Bonar "does have a need for further medical treatment including, but not limited to, the Tempur-Pedic mattress overlay and the Temper-Pedic pillow as recommended by Dr. Fine." The WCJ found unpersuasive Dr. Devor's "cryptic comment" that the specialized bedding was not indicated. The WCJ also rejected the Medical Center's contention the Temper-Pedic overlay and pillow are not warranted under the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines (ACOEM Guidelines), concluding they only apply during the first 90 days following the injury.
Doctors Medical petitioned the WCAB for reconsideration contending (1) the WCJ exceeded his powers by not applying the ACOEM Guidelines as newly mandated by the Legislature in enacting Senate Bill No. 899 (Sen. Bill 899), (2) its constitutional due process rights to cross-examine Bonar had been violated, and (3) Dr. Fine's medical reporting did not constitute substantial evidence to support awarding the Temper-Pedic overlay and pillow.
In a report and recommendation to the WCAB, the WCJ reiterated that the ACOEM Guidelines apply only within the first 90 days of injury. The WCJ also found Bonar's cross-examination due process argument "more than a little disingenuous" because "the simple fact remains that lay testimony from an injured worker as to the effectiveness of care recommended by a treating doctor is of no value." Explaining the WCAB "is not in the business of creating billing opportunities for defense counsel," the WCJ concluded the lay testimony of an injured worker could not conceivably provide any information relevant to the limited issue whether the Temper-Pedic overlay and pillow were medically warranted. The WCAB summarily denied reconsideration, adopting and incorporating the reasoning from the WCJ's report.
DISCUSSION
I. ACOEM Guidelines
The Medical Center claims the WCAB acted in excess of its powers by failing to follow the law requiring the application of the ACOEM Guidelines. Labor Code section 4600, subdivision (a), requires an employer to provide medical treatment and devices reasonably required to cure or relieve the injured worker from the effects of an industrial injury. Effective April 19, 2004, Sen. Bill 899 added a new subdivision (b) to Labor Code section 4600:
"(b) As used in this division and notwit
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