Kaiser Foundation Hospitals v. Workers' Compensation Appeals Board

Opinion

COBEY, Acting P. J.— Petitioners Kaiser Foundation Hospitals and Southern California Permanente Medical Group (Kaiser) contend that the Workers’ Compensation Appeals Board (WCAB) erred in equitably charging part of the injured worker’s attorneys fee against its lien filed in the workers’ compensation proceedings pursuant to Labor Code sections 4600 and 49031 for reimbursement of medical services rendered ór paid for by it. Kaiser also objects to the charging of a fee to it as it never received notice of any proceedings in this matter and prior to the assessment of the fee it never received notice from the WCAB that it was to be so charged with an attorneys fee. While we affirm the WCAB with respect to its holding that it has the equitable power to so apportion an attorneys fee, we hold that the procedure here followed by the WCAB in assessing the fee requires its annullment.

I

Respondent Arthur J. Kause filed a claim with the WCAB alleging that while employed by respondent Arden-Mayfair Inc. (Arden-Mayfair) he sustained injury to his back, arising out of and occurring in the course of employment. Arden-Mayfair at all times disputed that Kause sustained injury to his back as the result of said employment.

[510]Kaiser provided medical services to Kause for his back and filed a lien for such services in the workers’ compensation proceedings for $7,686.40.

The WCAB acknowledges that Kaiser received no prior notice of the one hearing held on Kause’s claim.

On April 2, 1976, a findings and award issued whereunder it was held that Kause had sustained injury to his back arising out of and occurring in the course of his employment. It was also found that Kause was entitled to reimbursement for self-procured medical treatment, including payment of Kaiser’s lien for $7,686.40. The judge, however, charged to Kaiser against its lien $700 in attorneys fee payable to Kause’s attorney.

Kaiser contends, without contradiction, that it did not receive notice of the apportionment of attorneys fee until after the award issued when it received a check for $6,986.40 from Arden-Mayfair in payment of its lien claim.

Kaiser then sought reconsideration by the WCAB. The WCAB initially granted reconsideration pending its decision on other cases before it which concerned the same issue. Thereafter, the WCAB affirmed the apportionment of the attorneys fee against Kaiser’s lien.