Garrett v. Workmen's Compensation Appeals Board

McCOY, J. pro tem.* The applicant seeks review and annulment of an order of the Workmen’s Compensation Appeals Board. We annul the order.

Upon Ms claim for workmen’s compensation the referee issued findings and award. He found that on December 28, 1965, while employed as a rubber cutter by the Goodyear Tire & Rubber Company, applicant sustained industrial injury to his back which caused temporary partial disability from December 29, 1965, through February 10,1967, and thereafter during which time applicant sustained a wage loss. Among the findings he expressly found the following: “Applicant reasonably, actually and necessarily incurred expense for medical treatment and medical-legal costs in the sum of $233, payable to Dr. Ronald Goldberg. ’ ’

Respondents, the employer and its insuirer, filed a petition for reconsideration. The prayer of their petition requested “that a finding be made that applicant is not entitled to any temporary disability indemnity in connection with the injury herein and is not entitled to self-procured medical expense as distinguished from medical legal expense.” (Italics added.)

The petition for reconsideration was granted. The referee’s findings and award were vacated and new findings and award issued. The board found that applicant sustained industrial injury to his back on December 28, 1965, that the injury caused no temporary disability, and the “issue of permanent disability, if any, is deferred.” It also found: “Applicant did not reasonably, actually or necessarily incur expense for medical treatment or medical-legal costs.” The order of the board was that the applicant “take nothing at this time” by reason of his application.

The appeals board’s decision, made pursuant to Labor Code, section 5908.5, 1 sets forth certain evidence upon which it relied in making its decision on the issue of whether applicant was entitled to temporary disability indemnity. In respect to the issues of reimbursement for medical treatment it stated: “ It is noted that applicant was sent to Dr. Goldberg [328]by his attorney. In connection with his claim for self-procured medical care and treatment, the record fails to reveal any request to the defendants for medical treatment or a change in doctors. There is no evidence that the defendants ever refused to furnish applicant with medical treatment. The Board therefore concludes that applicant’s self-procured medical treatment was undertaken on his own volition and at his own expense. ’ ’