Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Nos. FRE 0215344, FRE 0215345, FRE 0218718, Alfonso J. Moresi, Ronnie G. Caplane, and Janice Jamison Murray, Commissioners. Susan K. Shampanier, Workers’ Compensation Administrative Law Judge.
Parker, Kern, Nard & Wenzel and Eric W. Wenzel, for Petitioners.
No appearance by Respondent Workers’ Compensation Appeals Board.
Akulian, Ninnis & Cribbs and Leo A. Akulian, for Respondent Shaeann Young.
Before Harris, Acting P.J., Cornell, J., and Dawson, J.
Save Mart Supermarkets (Save Mart) petitions for a writ of review (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494) disputing 10 findings of the Workers’ Compensation Appeals Board (WCAB) after the WCAB ultimately remanded the matter back to the trial level to reopen discovery for additional medical evidence. Concluding the WCAB’s decision was both reasonable and based on substantial evidence, we deny the petition and grant respondent’s request for attorney fees.
Further statutory references are to the Labor Code unless otherwise stated.
BACKGROUND
Young worked as a bakery and deli clerk for a new Save Mart grocery store in Fresno when she began experienced back pain and soreness while stocking and unloading food over several days surrounding August 20, 2002. On Saturday, August 24, 2002, Young told her supervisor about her pain and was sent to the emergency room at Saint Agnes Medical Center (Saint Agnes) where she was diagnosed with an acute lumbar strain and placed on light duty. The following Monday, Young went to Save Mart’s workers’ compensation clinic at Concentra Medical Center (Concentra) and treated with Glenn Fujihara, M.D. Dr. Fujihara prescribed physical therapy three times a week for four weeks and expected a full recovery within eight weeks. On August 30, 2002, Dr. Fujihara reported that Young “feels worse today,” with “moderate to marked lower thoracic and lumbar back muscle spasms,” and “only 10% flexion, extension and lateral bending of the lumbar spine.”
Young quickly became unhappy with her treatment at Concentra and agreed to be seen by Diego Allende, D.O., the medical director of the Functional Industrial Rehabilitation Medical Association, Inc. (FIRM). She attended an appointment at the FIRM on September 3, 2002, and was seen by physician’s assistant William Parent rather than Dr. Allende. A September 10, 2002, report signed by both Parent and Dr. Allende diagnosed her with low back strain, but recommended that treatment was unnecessary and that she return to work.
The details of how, why, or when Young consented to treat with Dr. Allende are not set forth in the petition for writ of review.
Through its workers’ compensation administrator Pegasus Risk Management, Save Mart stopped paying Young temporary disability benefits and notified her by letter dated September 12, 2002, that she was released to full duty. On September 21, 2002, Young experienced severe back pain and fell to her knees while carrying approximately 50 pounds of meat at the grocery store. Save Mart again sent her to Saint Agnes emergency and then Dr. Fujihara at Concentra. Dr. Fujihara opined the recent fall appeared to be an aggravation of the prior injury and recommended modified work duties with physical therapy three times a week for four weeks.
Discontent with her medical care with Parent at the FIRM as well as Dr. Fujihara at Concentra, Young sought treatment with Paul Schroeder, D.C., at Schroeder Chiropractic North on September 24, 2002. A Save Mart claims adjuster advised both Young and Dr. Schroeder’s staff that same day that Save Mart would not authorize payment to Dr. Schroeder because Young was required to use an employer-approved doctor during the first 30 days of her September 21, 2002, fall. Young told Dr. Schroeder she injured herself on September 21, 2002, but also signed a form entitled “Employee Request to Change Physician First 30 Days” listing an August 16, 2002, date of injury. By letter dated September 30, 2002, Save Mart notified Young in writing that she must see either a medical doctor or chiropractor at the FIRM or seek an evaluation from a Qualified Medical Evaluator (QME) regarding her second injury on September 21, 2002.
Young proceeded along the unrepresented workers’ compensation applicant process and requested a panel of QME physicians from the former Industrial Medical Council (IMC). The IMC sent her the names of three physicians and she selected Jeffrey Flores, D.C., but Dr. Flores declined to conduct the QME examination citing a conflict of interest.
The Legislature abolished the IMC effective January 1, 2004, and transferred its functions to the Administrative Director of the Division of Workers’ Compensation. (Stats. 2003, ch. 639, §§ 8, 9, 50-52.)
Upon receiving a replacement name from the IMC, Young scheduled an April 21, 2003, examination with alternate QME Douglas Curran, D.C. In reports dated June 4, 2003, and September 15, 2004, Dr. Curran found Young permanent and stationary with a limitation to light work and recommended future physical therapy and chiropractic care. Dr. Curran’s opinion did not change after viewing sub rosa video surveillance of Young’s daily activities.
Under direction from a workers’ compensation administrative law judge (WCJ), Young submitted to an evaluation with Dr. Allende on September 29, 2003. Dr. Allende concluded in an October 15, 2003, report that Young “has a disability, which correlates to a preclusion from heavy work.” He opined future medication and physician visits would be required, but that “Chiropractic treatment would be of very limited use at this point, as she needs proper rehabilitation.”
Dr. Schroeder continued to treat Young through April 28, 2004, despite Save Mart’s objection. In an October 9, 2003, primary physician’s report, Dr. Schroeder concluded that Young was permanent and stationary and that she could return to modified work without heavy lifting, and that she would require future medical care including 24-36 chiropractic visits and possible surgery. In March 2005, Dr. Schroeder filed a lien claim with the WCAB for 65 treatments, interest, and penalties in the amount of $24,036.31.
Save Mart’s counsel deposed Young on September 18, 2003, and she testified regarding her inability to perform numerous physical activities. Save Mart also deposed Dr. Allende on December 17, 2003. He concluded that sub rosa video surveillance of Young taken in October 2002 was inconsistent and “very different from what my subjective findings were from what she told me when [he] examined her” nearly a year later on September 29, 2003. He changed his assessment and concluded Young had lost only 25 percent of her pre-injury lifting capacity and that she was precluded from very heavy lifting, but continued to agree she required further medical care. In April 2004, Dr. Allende opined Young was able to perform her full job duties, which included occasional lifting of approximately 60 pounds.
Based on Dr. Allende’s opinion that the sub rosa video footage of Young was inconsistent with the history she provided, the Fresno County District Attorney charged Young with two felony counts of making false or fraudulent material statements or representations for purposes of obtaining workers’ compensation benefits (Ins. Code, § 1871.4, subd. (a)(1)) and one felony count of attempted perjury (Pen. Code, §§ 118a, 664). Young pled no contest to a single misdemeanor count of making a false or fraudulent material statement at her deposition and agreed to pay a restitution fine of $2,500.
On April 19, 2007, following workers’ compensation hearings on October 19, 2006, and January 1, 2007, the WCJ issued numerous findings regarding the designation of the physicians and their right to treat Young, the effect of Young’s no contest plea, her entitlement to temporary disability, and attorney fees. Significantly, the WCJ concluded the record lacked substantial medical evidence as to her level of disability and ordered the parties to meet and confer to select an Agreed Medical Evaluator or to return to treating physician Dr. Schroeder to obtain a ratable report discussing apportionment and future medical care. On reconsideration, the WCAB adopted and incorporated the WCJ’s reasoning and further developed its own reasons explaining why Young’s negotiated misdemeanor plea for insurance fraud did not bar her recovery to workers’ compensation benefits.
The WCJ also ruled: (1) Dr. Schroeder was Young’s primary treating physician after Dr. Fujihara served as the initial primary treating physician. Dr. Allende was never Young’s primary treating physician. (2) Young was not permanent and stationary and had not been released from care by Dr. Fujihara before she sustained her second industrial injury on September 21, 2002, that exacerbated and aggravated the August 20, 2002, injury. (3) Young was entitled to temporary disability from August 24, 2002, through September 3, 2002, and September 24, 2002, through April 21, 2003, and the Employment Development Department was entitled to partial satisfaction of its lien. (4) Young became permanent and stationary on April 21, 2003, when she was examined by the panel QME Dr. Curran. (5) Save Mart was responsible for Dr. Schroeder’s treatment and reporting from August 20, 2002, through April 21, 2003, payable at the rate of the Official Medial Fee Schedule plus interest. (6) None of the medical reporting from Drs. Curran, Schroeder, or Allende constituted substantial evidence. Thus, Young’s level of permanent disability or need for future medical care could not be determined. (7) Young complied with Save Mart’s request to select a QME. Save Mart, however, did not comply with QME Dr. Curran’s recommendations and chose not to follow through on its objections to her treating with Dr. Schroeder and failed to send Dr. Schroeder’s reporting to Dr. Curran for evaluation. (8) Young complied with Save Mart’s request to be evaluated by Dr. Allende, as ordered by the WCJ, but the report was not properly admissible under sections 4050, 4060, or 4061. Therefore Young’s objection to Dr. Allende’s reports and deposition was sustained. (9) As a misdemeanor, Young’s no contest plea to making a false or fraudulent statement during her deposition did not preclude her from receiving workers’ compensation benefits. (10) Young’s newly appointed attorney was entitled to attorney fees from Save Mart.
DISCUSSION
In reviewing a petition for writ of review from a decision of the WCAB, we follow the legislative mandate that the WCAB’s findings “on questions of fact are conclusive and final and are not subject to review.” (§ 5953.) We thus “may not reweigh the evidence or decide disputed questions of fact.” (Western Growers Ins. Co. v. Workers’ Comp. Appeals Bd. (1993) 16 Cal.App.4th 227, 233.) Those findings must nevertheless support the WCAB’s order, decision, or award, which must also be both reasonable and supported by substantial evidence. (§ 5952, subds. (c)-(e).) Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. (Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (1983) 34 Cal.3d 159, 164.) When interpreting statute, however, we apply a de novo standard of review while keeping in mind that the WCAB’s statutory interpretation, so long as not clearly erroneous, is entitled to great weight. (Vera v. Workers’ Comp. Appeals Bd. (2007) 154 Cal.App.4th 996, 1003.)
A. Primary Treating Physician for Young’s August 20, 2002, Injury
An employer must provide an industrially injured worker with medical treatment “reasonably required to cure or relieve the injured worker from the effects of his or her injury.” (§ 4600, subd. (a).) The employer generally controls the workers’ medical treatment during the first 30 days from the date an injury is reported. (Braewood Convalescent Hospital, supra, 34 Cal.3d at p. 165.) However, if an employer fails or refuses to provide medical treatment during the initial period, it “loses the right to control the employee’s medical care and becomes liable for the reasonable value of self-procured medical treatment.” (Ibid.) An employer may also be deemed to have waived its control over medical care if it expressly or impliedly consents to treatment selected by the employee. (See 1 Hanna, Cal. Law of Employee Injuries and Workers’ Compensation (rev. 2d ed. 2007) § 505[1], p. 5-32.1.)
At any time, even within the 30-days from the date an employee reported the injury, the employer must honor an injured employee’s request for a single change of physician. (§ 4601, subd. (a).) But “after 30 days from the date the injury is reported, the employee may be treated by a physician of his or her own choice or at a facility of his or her own choice within a reasonable geographic area.” (§ 4600, subd. (c).) “[S]ince the adoption of these provisions, [the WCAB] has consistently interpreted the section 4600 provision regarding choice of physician to apply when an employee has elected to select his or her own physician while it has interpreted section 4601 to apply when an employer retains control over medical treatment and provides a physician to treat the injured employee.” (Ralphs Grocery Co. v. Workers’ Comp. Appeals Bd. (1995) 38 Cal.App.4th 820, 827.) Thus, once the employee maintains control over her own treatment following 30 days of reporting the injury, she “is entitled under section 4600 to be treated by a physician of choice and is not limited in the number of changes of physician that may be made.” (Ibid.)
A “‘primary treating physician’ is the physician primarily responsible for managing the care of an employee and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter.” (Cal. Code of Regs., tit. 8, § 9785, subd. (a)(1). ) The term “physician” within the meaning of the workers’ compensation laws “includes physicians and surgeons holding an M.D. or D.O. degree, psychologists, acupuncturists, optometrists, dentists, podiatrists, and chiropractic practitioners licensed by California state law and within the scope of their practice as defined by California state law.” (§ 3209.3, subd. (a).) An employee may have but one primary treating physician at a time and may select a new primary treating physician only where the employee requires continuing or future medical treatment and there is no dispute regarding a medical determination or recommended care. (Reg. § 9785, subd. (b).) An employer is required to reimburse a primary treating physician for all medical treatment reasonably required to cure or relieve the employee from the effects of the industrial injury. (Reg. § 9781, subd. (d)(1); 2 Hanna, Law of Employee Injuries and Workers’ Compensation (rev. 2d ed. 2006) § 22.02[3], p. 22-21.) The employer must also provide the primary treating physician with all medical information, x-rays, and laboratory studies relating to the employee’s claim. (Reg. § 9781, subd. (d)(3).)
Further Regulation references are to Title 8 of the California Code of Regulations.
Save Mart contends Young could not select Dr. Schroeder as her primary treating physician within 30 days from her initial August 20, 2002, injury because she already selected Dr. Allende at the FIRM as her primary treating physician and his report of September 10, 2002, concluded she no longer required medical treatment. According to Save Mart, because Young and Dr. Allende disputed whether she required continued medical care, the issue needed to be resolved through the QME process before she could select a new primary treating physician.
As the WCJ advised the WCAB in her report and recommendation, there is no evidence Dr. Allende examined Young within the initial 30 days of her injury or when he issued his September 10, 2002, report prepared by physician’s assistant William Parent. Dr. Allende, in fact, did not personally examine Young until September 29, 2003, a year after she began seeing Dr. Schroeder on September 24, 2002. A medical report in which the signing physician has not examined the employee is inadmissible in workers’ compensation proceedings. (§ 4628, subds. (a) & (e).) Since Dr. Allende did not examine Young, his September 10, 2002, report could not be relied upon and the WCAB reasonably concluded Dr. Allende never became Young’s primary treating physician. Moreover, given the opinion of Save Mart’s original treating physician, Dr. Fujihara, that Young required continued treatment, there was no dispute as to her need for further medical care.
B. Primary Treating Physician for Young’s September 21, 2002, Injury
Save Mart contends Dr. Schroeder could not serve as the primary treating physician for Young’s second injury on September 21, 2002, because she had already been discharged from care by Dr. Allende, effectively finding her permanent and stationary for the first injury and entitling Save Mart to a second 30-day window of employer control. However, since Dr. Allende had not examined Young at that time and instead relied on the observations of his physician’s assistant, his medical opinion was meaningless for purposes of determining Young’s permanent and stationary status. Moreover, Save Mart’s own earlier reporting from Dr. Fujihara refutes Save Mart’s position that Young was permanent and stationary at the time of her subsequent injury.
C. Temporary Disability from September 24, 2002, through April 21, 2003
Save Mart argues that Dr. Schroeder’s medical opinion that Young was temporarily disabled between September 24, 2002, and April 21, 2003, must be disregarded because Dr. Allende served as the primary physician. Again, Save Mart fails to acknowledge Dr. Allende had not personally evaluated Young and Dr. Schroeder’s opinion was consistent with that of Dr. Fujihara.
D. Temporary Disability and Young’s Misdemeanor Offense
Save Mart disputes Young’s right to receive temporary disability payments due to her no contest plea to making a false or fraudulent statement in seeking workers’ compensation benefits. Insurance Code section 1871.4, subdivision (a)(1) makes it unlawful to make “a knowingly false or fraudulent material statement or material representation for the purpose of obtaining or denying any [workers’] compensation .…” Further, “Any person convicted of workers’ compensation fraud pursuant to Section 1871.4 or Section 550 of the Penal Code shall be ineligible to receive or retain any compensation as defined in [the workers’ compensation laws], where that compensation was owed or received as a result of a violation of Section 1871.4 or Section 550 of the Penal Code for which the recipient of the compensation was convicted.” (Ins. Code, § 1871.5.)
In addition to the WCJ’s finding that a no contest plea to a misdemeanor misrepresentation offense could not be used against Young in a civil matter under Penal Code section 1016, subdivision (3), the WCAB relied upon Tensfeldt v. Workers’ Compensation Appeals Bd. (1998) 66 Cal.App.4th 116, 125 (Tensfeldt) in concluding Young remained eligible to receive workers’ compensation benefits. In Tensfeldt, an apprentice plumber pled nolo contendere to misdemeanor insurance fraud (Ins. Code, § 1871.4, subd. (a)(1)) relating to the circumstances in which he sustained a work-related knee injury. (Tensfeldt, supra, at p. 120.) After the employee filed a subsequent workers’ compensation claim alleging the true facts of his injury, the appellate court agreed with the WCAB that the employee was “wholly barred from receiving or retaining any such benefits directly emanating from or connected with the fraudulent misrepresentation” because the misrepresentation went to the industrial nature of the injury itself. (Id. at p. 119.) Interpreting the relevant Insurance and Labor Code provisions, the court reasoned:
A plea of “no contest” is the functional equivalent to a plea of “nolo contendere.” (People v. Yartz (2005) 37 Cal.App.4d 529, 532.) Defining the six types of pleas available to a criminal defendant, Penal Code section 1016, subdivision (3) provides that a plea of nolo contendere, or no contest, is subject to the approval of the court and that such a plea to a crime punishable as a felony carries the same effect as a guilty plea, but in “cases other than those punishable as felonies, … the plea may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.” We do not consider the application of this provision here and instead review the reasoning expressly set forth by the WCAB on reconsideration.
“Turning to the language in question, section 1871.5 clearly states that ‘Any person convicted of workers’ compensation fraud ... shall be ineligible to receive or retain any compensation ... where that compensation was owed or received as a result of a violation ... for which the individual was convicted.’ [Original emphasis.] Giving the language its ordinary meaning, section 1871.5 unambiguously provides that an injured worker must return only ‘that compensation’ obtained by fraud, and may not receive further compensation stemming from the fraud. … Accordingly, we hold that following a conviction of workers’ compensation fraud under section 1871.4(a)(1), an individual who seeks to receive or retain workers’ compensation benefits is barred from retaining or receiving any compensation, as defined in Labor Code section 3207, which stems directly from the fraudulent misrepresentation.” (Tensfeldt, supra, 66 Cal.App.4th at pp. 123-124.)
The court continued, however, that section 1871.5 did not necessarily prevent an injured employee from receiving workers’ compensation benefits:
“We further emphasize that as a general rule these fraud cases must be determined on an ad hoc basis. It is unworkable to attempt a fixed rule interpreting section 1871.5 to completely bar individuals convicted under section 1871.4 from forever receiving or retaining any workers’ compensation benefits connected with a claim for an otherwise legitimate industrial injury, without regard for the specific facts of the case. Nor would such an inflexible rule be justified by the plain language of section 1871.5. [¶] … [¶]
“Entitlement to receive further compensation benefits after a fraud conviction necessarily will require (1) an actual, otherwise compensable, industrial injury; (2) substantial medical evidence supporting an award of compensation not stemming from the fraudulent misrepresentation for which the claimant was convicted; and (3) that claimant’s credibility is not so destroyed as to make claimant unbelievable concerning any disputed issue in the underlying compensation case. Whether an employee is barred from receiving benefits by application of section 1871.5, following a conviction of workers’ compensation fraud under section 1871.4(a)(1), must be decided on a case-by-case basis. Absent a clear and express intention of the Legislature, we cannot interpret section 1871.5 to bar without qualification receipt of all classes of compensation benefits as a result of the fraudulent receipt of any one benefit unless there is substantial proof that those benefits in question were owed or received as a result of the fraud.” (Tensfeldt, supra, 66 Cal.App.4th at p. 124-126.)
Considering the factors set forth in Tensfeldt, the WCAB concluded Young remained entitled to recover workers’ compensation benefits because (1) Save Mart admitted Young sustained two industrial injuries on August 2, 2002, and September 21, 2002, (2) medical reporting from primary treating physician Dr. Schroeder and QME Dr. Curran, unrelated to the Young’s misrepresentations to Dr. Allende, independently substantiated the need for temporary disability indemnity and medical treatment, and (3) the WCJ did not find Young’s misdemeanor plea so destroyed her credibility as to make her unbelievable. Save Mart does not offer this court any specific references to the record to refute the WCAB’s reasonable conclusions. Notably, Save Mart has been unable to explain in any detail Young’s misstatements that caused her to plea no contest to insurance fraud and how those misstatements were relied upon by Drs. Schroeder and Curran. Instead, Save Mart relies upon an overly broad blanket assertion that nearly everything Young told her treating and examining physicians was untrue because of her no contest plea. We find no evidence to support such a conclusion.
E. Dr. Curran’s Medical Opinion
Save Mart contends Dr. Curran’s medical opinion does not constitute substantial evidence because it is based on Young’s tainted deposition. Save Mart argues that given Young’s misdemeanor misrepresentation plea regarding her deposition testimony, “[t]he only inference to be drawn is that [she] lied to Dr. Curran,” and therefore, his opinion she became permanent and stationary on April 21, 2003, is unreliable. Even if, as Save Mart alleges, Young’s misdemeanor plea resulted from her deposition testimony as opposed to the history she provided to Dr. Allende at the FIRM, Save Mart again fails to point to any misstatement she provided to Dr. Curran. Save Mart repeats that Young was convicted of fraud and lied at her deposition as support for its proposition that her entire medical history cannot be believed, but Save Mart fails to point to a single example of what she may have lied about. To the contrary, Dr. Curran reviewed and summarized the sub rosa surveillance of Young in preparing his September 15, 2004, supplemental QME report and did not change his earlier medical opinion that she was permanent and stationary on April 21, 2003. Discussing Young’s sub rosa activities, Dr. Curran found nothing inconsistent with his opinion and the history provided by Young, noting “It is my opinion that all of the activities performed by the patient in this sub rosa tape only require a minimum of physical strength, effort and endurance and fall well within the preclusions outlined later in this report.” Save Mart does not demonstrate any apparent connection between the basis for Young’s misdemeanor plea and Dr. Curran’s medical reporting.
Even the WCAB was uncertain why Young pled no contest to insurance fraud allegation, noting on reconsideration that “It appears that applicant pled no contest to one misdemeanor charge, in essence, of either testifying falsely in her deposition or to making misrepresentations to Dr. Allende.”
F. Save Mart’s Liability to Dr. Schroeder
Largely repeating its prior arguments, Save Mart contends it is not liable to Dr. Schroeder for medical treatment he provided between September 24, 2002, and April 23, 2003, and the cost of preparing his permanent and stationary report because Save Mart maintained control over treatment within the 30 days of Young’s second injury on September 21, 2002, and because his reporting lacked substantial evidence. Save Mart does not present anything to refute the WCAB’s reasoning as adopted from the WCJ’s report and recommendation:
“Petitioner may have told Applicant and Dr. Schroeder that they did not want her to see him. Petitioner may have told them that they wanted her to pick a different doctor on or about 9/24/02. On 9/30/02, [Save Mart’s administrator] Pegasus notified Applicant in writing that she needed to see a doctor at the F.I.R.M. for her 09/21/02 injury or select a panel QME. [Original emphasis.] On 10/21/02 Pegasus notified Applicant they objected to the opinion of Dr. Schroeder regarding treatment, temporary disability, and permanent and stationary status and sent her forms to request a panel. [Citation.] Applicant complied with defendant’s request.
“It is not reasonable for defendant to expect the applicant to go without treatment for her accepted 08/20/02 injury when they failed to schedule an appointment with a doctor of their choice and notify her of the date, time and place following the 09/21/02 injury. In November 2002 (within the 90 days allowed to determine whether to accept or deny injury) they sent a letter to Dr. Schroeder, copy to applicant, advising they were questioning whether there was an industrial injury on 09/21/02. Although they said they were scheduling an appointment with Dr. Fujihara, there is no evidence it occurred. [Citation.]
“The employer failed to provide applicant with medical, chiropractic, and other reasonable medical treatment that was reasonably required to cure or relieve from the effects of the 09/21/02 injury after her last appointment at Concentra on 09/23/02. Unlike defendant in Ordorica v. WCAB (2001) [87 Cal.App.4th 1037,] 66 Cal.Comp.Cases 333, Pegasus did not schedule an appointment with Dr. Allende himself and send appointment letters for either injury. The employer has liability for reasonable medical expenses incurred by or on behalf of the employee. There is nothing in the reports of the panel QME [Dr. Curran] that indicate the treatment provided by Dr. Schroeder was not reasonable or necessary.”
G. Save Mart’s Liability to Dr. Schroeder, Again
Save Mart further alleges, again, that it is not liable to Dr. Schroeder for his medical treatment of Young because of her misdemeanor no contest plea. As addressed above, Save Mart does not address any connection between the facts underlying Young’s conviction and Dr. Schroeder’s treatment, reporting, or recommendations. (Tensfeldt, supra, 66 Cal.App.4th at pp. 124-126.)
H. Dr. Allende was not the Primary Treating Physician
Apparently of the opinion an argument becomes more convincing the more often it is repeated and rephrased, Save Mart reasserts that Dr. Allende served as Young’s primary treating physician and his reporting and deposition testimony therefore should be admissible. As addressed above, although Young may have consented to treat with Dr. Allende, only a physician’s assistant at the FIRM examined her before she began treating with Dr. Schroeder. By law, Dr. Allende could not serve as a treating physician for a patient he had not examined. (§ 4628, subds. (a) & (e).) A “ ‘primary treating physician’ is the physician primarily responsible for managing the care of an employee and who has examined the employee at least once for the purpose of rendering or prescribing treatment and has monitored the effect of the treatment thereafter.” (Reg. § 9785, subd. (a).) Not having examined Young until a year after her injuries and only upon the directive of the WCJ to conduct an examination, Dr. Allende did not serve as the primary treating physician.
I. Attorney Fees Relating to Save Mart’s Application for Adjudication
Concluding Young had complied with Save Mart’s directives, the WCAB adopted the WCJ’s award of attorney fees in favor of Young arising out of Save Mart’s application for adjudication. Section 4064, subdivision (c), provides:
“Subject to Section 4906 [general attorney fee(s) provision], if an employer files an application for adjudication and the employee is unrepresented at the time the application is filed, the employer shall be liable for any attorney’s fees incurred by the employee in connection with the application for adjudication.”
Save Mart contends section 4064, subdivision (c) is inapplicable here because Young filed an initial application for adjudication before Save Mart filed a subsequent application for adjudication disputing the recommendations of Drs. Schroeder and Curran. We are unconvinced by Save Mart’s claim presented without any legal authority. Moreover, the WCJ expressly found that Save Mart’s refusal to follow the recommendations of the primary treating physician and QME, as required under section 4061, subdivision (h)(1), effectively mandated Young’s initial filing of the application for adjudication.
Section 4061, subdivision (h)(1) provides: “If a comprehensive medical evaluation from the treating physician or an agreed medical evaluator or a qualified medical evaluator selected from a three-member panel resolves any issue so as to require an employer to provide compensation, the employer shall commence the payment of compensation or promptly commence proceedings before the appeals board to resolve the dispute.”
J. Employment Development Department Lien
Save Mart contends the Employment Development Department (EDD) is not entitled to reimbursement for benefits paid to Young between September 29, 2003, and April 23, 2003, because the EDD entered into a Compromise and Release disposing of the claim. There is no indication this issue was raised before the WCAB on reconsideration or that the EDD was served a copy of Save Mart’s petition for writ of review before this court. “The petitioner for reconsideration shall be deemed to have finally waived all objections, irregularities, and illegalities concerning the matter upon which the reconsideration is sought other than those set forth in the petition for reconsideration.” (§ 5904; see also American Psychometric Consultants, Inc. v Workers’ Comp. Appeals Bd. (1995) 36 Cal.App.4th 1626, 1638.) We therefore may not address the claim.
DISPOSITION
The petition for writ of review is denied. Under authority of section 5801, we find no reasonable basis for the petition and remand the cause to the WCAB to make a supplemental award of reasonable attorney fees to respondent Shaeann Young based on the services rendered in answering the petition. (Crown Appliance v. Workers’ Comp. Appeals Bd. (2004) 115 Cal.App.4th 620.) This opinion is final forthwith as to this court.