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Adventist Health v. Workers' Compensation Appeals Board and Evelyn

October 23, 2012


(WCAB No. ADJ2249081)

The opinion of the court was delivered by: Raye , P. J.

Adventist Health v. WCAB (Fletcher)



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The doctors and the workers' compensation judge agree that this is a complicated case because the injured worker has been unable to find physicians in Maryland her employer will approve, and who will accept a California workers' compensation case and comply with the reporting requirements while providing adequate treatment for her unremitting back pain. The petition for a writ of review by the self-insured employer, Adventist Health (Adventist), is but the latest installment in the ongoing battle over Evelyn Fletcher's treatment.

Everyone agrees that Fletcher needs a new treating physician. The employer does not challenge her right to or her need for future medical treatment, and the injured worker does not challenge the removal of her doctor, who failed to comply with reporting requirements. No one insists that the doctor who was temporarily enlisted to treat her should remain her treating physician. The issues before us are fleeting and of little lasting significance in a case that is now over 12 years old.

Here, the workers' compensation judge sought to craft a creative and compassionate solution to Fletcher's conundrum. However, the rigid statutory rules governing treatment for a work-related injury do not provide room for the creative discretion the judge sought to exercise in this case. We issued a writ of review (Lab. Code, § 5950) and shall annul the order of the Workers' Compensation Appeals Board (WCAB) because Fletcher did not properly designate a new primary treating physician but returned to physicians who had been administratively removed because they did not provide the employer with a plan of treatment or any medical reports. The WCAB acted without authority, therefore, when it ordered Adventist to reimburse Fletcher for self-procured medical care and ordered two of her medical records to be withheld from the next primary treating physician without good cause.


Three quarters of the record before us documents the torturous history of this case, medically and legally, but is essentially irrelevant to the narrow issues presented in the petition for a writ of review. We very briefly recap that history to provide a sense of the context for and tenor of the current wrangling.

Fletcher suffered a work-related injury to her back on May 26, 2000, which resulted in back surgery in 2004. Unfortunately, the surgery was unsuccessful and she has been unable to work since that time. She suffers chronic pain 24 hours a day, 7 days a week, night and day. She cannot sleep and cannot bend, lift, or walk without severe pain.

Fletcher, who now lives in Maryland and cares for her elderly mother, requested a change of venue from Redding to San Francisco to eliminate the long drive from the Sacramento airport to Redding. As a litigant in propria persona, she failed to serve the employer with the request. James E. Bruscino, representing Adventist, threatened her with monetary sanctions for any further ex parte communications and opposed her request for a change of venue. Venue was changed to Sacramento.

Judge Joseph S. Samuel was assigned to the case in January of 2008. At the hearing on January 7, 2008, Judge Samuel admonished Bruscino: "I find this really troubling when the injured worker is put in a position of having to adjust her own claim, and I really have a great deal of trouble with that, but I understand the carriers need some sort of indication that it relates to the industrial injury, but my impression is these things get sent to clerical staff who kind of move them around, and so I am going to order, Mr. Bruscino, that you take the lead in ensuring that clarity, that your client gets clear information. I mean, you know, from what Ms. Fletcher is saying -- she shouldn't have to be dealing with this. This should be between the hospital and the adjuster."

Adventist denied trigger point injections to relieve Fletcher's back pain. In the same hearing, the judge expressed his frustration that the treatment had not been approved. "Well, I've got to tell you, Mr. Bruscino, I don't understand why these things are not certified."

Fletcher did not always prevail in the various disputes that erupted; Adventist prevailed in at least two of its petitions for reconsideration before the WCAB. On these occasions, Judge Samuel made creative orders to help facilitate the frustrating process of securing treatment for Fletcher in Maryland and to help Fletcher live with the physical and psychological pain caused by both the industrial injury and the never-ending battle to get treatment. Thus, in the absence of a request from Fletcher or any of her ...

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