Zeeb v. Workmen's Compensation Appeals Board

PETERS, J. Petitioner sustained an industrial injury, consisting of dermatitis of the right hand. On March 31, 1965, the Industrial Accident Commission, the predecessor of respondent board, issued its award which included further medical treatment necessary to cure or relieve from the effects of the injury. The employer, respondent Standard Oil Company of California, then authorized treatment by Dr. Ailing-ton, but petitioner objected to Dr. Allington on the ground of the distance from his home to the doctor’s office. Standard then designated a panel of three physicians for petitioner’s consideration, and he chose Dr. ICanzel, who rendered treatment from May 4, 1965, to July 20, 1965. In October of 1965, petitioner’s condition “flared up” again, but Dr. Kanzel, on the ground that the then present condition was not due to the industrial injury, refused to treat petitioner except on a private patient basis.

Petitioner then went for treatment to Dr. Lininger. He stopped seeing her because he was unable to pay her bills and sought reimbursement for the self-procured medical treatment. On March 30, 1966, he received an award reimbursing him for the self-procured medical treatment based on the theory that the “flare up” in October 1965 was connected with the original industrial injury.

Petitioner thereafter continued to obtain treatment from Dr. Lininger. On April 18, 1966, the employer notified.petitioner that Dr. Kanzel had been authorized to resume rendering treatment and that further treatment by Dr. Lininger would not be authorized. Petitioner refused the offer of Dr. Kanzel's services, and filed a petition for enforcement of medical award seeking a determination that he is entitled to continue his treatment with Dr. Lininger and that Standard is required to pay the costs of the treatment. The matter was submitted on the pleadings and the. board denied petitioner’s claim that he was entitled to further treatment, of his industrial injur)' by a doctor of his own choice at Standard’s expense.

The issue presented is whether an employer may [499]resume control over the medical treatment by offering to provide it after the employer has once refused to provide medical treatment for an industrial accident, the employee has obtained private treatment by a physician and in the absence of any substantial change of condition wishes to continue his treatment with the same doctor.

The petitioner and board in their briefs discuss only this issue. The referee’s decision denying petitioner relief, however, and the referee’s report on rehearing, suggest that in fact no proper issue was presented for decision because the record does not affirmatively indicate that petitioner has secured any treatment since April 18, 1966, the date the employer offered to provide the services of Dr. Kanzel. The issue presented in the briefs cannot thus be avoided. Section 4604 of the Labor Code requires that controversies “between employer and employee arising under this chapter shall be determined by the appeals board, upon the request of either party. ’ ’ The issue briefed is a controversy and its determination cannot be avoided on the theory suggested by the referee.