Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of review from a decision of the Workers’ Compensation Appeals Board. Frank M. Brass, Ronnie G. Caplane and Deidra E. Lowe Commissioners. Richard Shapiro, Workers’ Compensation Administrative Law Judge., WCAB No. MON0289393
Law Offices of Patrick L. Bekeza and Patrick L. Bekeza for Petitioner.
No appearance by Respondent Workers’ Compensation Appeals Board.
Suzanne Ah-Tye, Charles W. Savage and Alan R. Canfield for Respondents Dynasty Framing, Inc. and State Compensation Insurance Fund.
No appearance by Respondent Cornelio Escobedo
Before Ardaiz, P.J., Gomes, J., and Hill, J.
OPINION
California Nurse Life Care Planning, Inc. (CNLCP) petitions for a writ of review from a decision of the Workers’ Compensation Appeals Board (WCAB). (Lab. Code, §§ 5950, 5952; Cal. Rules of Court, rule 8.494.) CNLCP contends the WCAB erred and abused its discretion by not awarding reimbursement for a life care plan prepared for purposes of obtaining a settlement in a workers’ compensation action involving a catastrophically injured employee. Finding no evidence or legal support for the proposition that the report was required or necessary in the proceedings, we conclude the WCAB reasonably denied the lien within its discretionary powers.
Further statutory references are to the Labor Code.
BACKGROUND
On April 1, 2002, 25-year-old Cornelio Escobedo was working as a carpenter for Dynasty Framing, Inc. (Dynasty) in Costa Mesa when he fell 20 feet from a rooftop. The accident severely limited the use of Escobedo’s extremities, caused psychological damage, and has since necessitated that he receive twenty-four hour care to assist him with the activities of daily living. Dynasty’s workers’ compensation insurer, the State Compensation Insurance Fund (SCIF), accepted the injury as industrially related and provided Escobedo temporary disability indemnity between April 2, 2002, and January 18, 2005, when he became permanent and stationary.
At the request of Escobedo’s workers’ compensation counsel, CNLCP prepared a Life Care Plan on April 1, 2005, projecting the current and future costs associated with Escobedo’s medical and non-medical needs. According to CNLCP, the purpose of the plan was to “assess the value of the case and assist the parties in reaching an anticipated structured settlement.” On April 23, 2005, CNLCP filed a Notice and Request for Allowance of Lien with the WCAB in the amount of $22,357.44 for the expense associated with preparing the Life Care Plan. Two days later, CNLCP requested a WCAB hearing by filing a Declaration of Readiness to Proceed. After subsequent billing, the total invoice for the Life Care Plan amounted to $24,424.44.
Electing not to utilize a Compromise and Release agreement to settle the matter, the parties instead entered into a Stipulations with Request for Award on October 17, 2006. Dynasty and the SCIF agreed that Escobedo sustained an industrial injury causing 100 percent permanent disability, which amounted to a weekly lifetime pension of $352.80 per week and future related medical care. A workers’ compensation administrative law judge (WCJ) approved the stipulation and issued a conforming award.
Following an unsuccessful mandatory settlement conference in January 2008, the parties submitted the matter of CNLCP’s lien at a March 2008 hearing. On March 27, 2008, the WCJ denied reimbursement because CNLCP “did not provide compensable services in this case.” The WCJ concluded the Life Care Plan was neither a medical-legal expense under section 4621, subdivision (a) nor a valid cost under section 5811. Adopting the WCJ’s reasoning, the WCAB denied CNLCP’s petition for reconsideration.
Although the WCJ listed section 4622, subdivision (a), it is apparent from the arguments and statutory provisions that the WCJ intended section 4621, subdivision (a).
DISCUSSION
CNLCP contends the WCAB erred in refusing to award reimbursement for the Life Care Plan because it was both a reasonably required medical-legal expense and a reimbursable cost under the WCAB’s discretionary powers. We agree with the WCAB that the expense was not mandated under the law and was reasonably denied.
I. Medical-legal expenses
Section 4621, subdivision (a) provides that an injured employee is entitled to “medical-legal expenses” that are “reasonably, actually, and necessarily incurred.” Section 4620, subdivision (a) defines the term “medical-legal expense” as “any costs and expenses incurred by or on behalf of any party … for X-rays, laboratory fees, or other diagnostic tests, medical reports, medical records, medical testimony, and, as needed, interpreter’s fees, for the purpose of proving or disproving a contested claim.” (Emphasis added.)
The WCJ here noted the case was settled by a stipulated award and that the parties agreed Escobedo was permanently totally disabled and in need of further medical care. Even Escobedo admits to this court that “there was admittedly no ‘contested claim’ in the traditional sense,” but argues instead that there was “an unsettled and unevaluated claim which, due to the catastrophic nature of the injury, would lend itself to a structured settlement making the Complex Life Care Plan, which petitioner prepared at the request of applicant’s attorney, a report which was reasonably required to prove-up the value of the future medical charges, including reconstructive surgery and skilled nursing care.”
CNLCP offers no legal support for its proposition that the value of Escobedo’s potential future medical expenses was ever a contested issue in the workers’ compensation proceedings. As the WCJ concluded:
“State Fund does not appear to have contested any issues and, even if it had, the report issued by lien claimant was not, by its own terms, prepared for litigation purposes. The report was prepared to help assess the value of the case for possible settlement by Compromise and Release, an agreement neither side was obligated to reach. State Fund was required by law to provide benefits to applicant, which it agreed to do, but it was not obligated to make an offer for a lump sum buyout.”
Although the parties may have disputed Escobedo’s level of permanent disability, there is no evidence of any disagreement between the parties relating to the value of Escobedo’s future medical care. Indeed, the WCJ concluded such a determination was outside the scope of the WCAB’s authority. Absent any evidence to support CNLCP’s claim that the Life Care Plan was a qualifying medical legal expense that was “reasonably, actually, and necessarily incurred” and “for the purpose of proving or disproving a contested claim,” the WCAB properly refused to award reimbursement under section 4621, subdivision (a).
II. Discretionary costs
CNLCP also contends the WCAB abused its discretion in refusing to award reimbursement for the Life Care Plan as costs under section 5811, subdivision (a), which provides in relevant part that, “In all proceedings under this division before the appeals board, costs as between the parties may be allowed by the appeals board.” (Emphasis added.)
In the report and recommendation to the WCAB, the WCJ explained:
“Lien claimant [CNLCP] argues that the plan she prepared might have proved useful in settling the case by way of Compromise and Release, if it had actually been so settled, which it was not. There is no evidence at all that the report was useful in resolving the case, which was settled by way of Stipulation with Request for Award pursuant to which defendant simply agreed that applicant was permanently and totally disabled and entitled to further medical treatment as recommended by the treating doctor. The plan was unrelated to litigation, set out a monetary value for future medical care the doctor recommended but did not itself develop a treatment plan, and was not even filed with the Board until lien claimant sought payment from defendant. No adequacy hearing was held as a precondition for approving the Stipulation, so the plan was completely unnecessary. Finally, as noted in the Opinion, carriers are under no obligation to ‘buy out’ future medical care for a lump sum, just as injured workers are not required to sell it, and if applicants wish to entice carriers into doing so, the costs associated with negotiating the settlement are their own responsibility. The plan fits none of the statutory categories for reimbursement, and the lien was properly disallowed.”
CNLCP concedes that section 5811 “is permissive and permits the appeals board to exercise its discretion when allowing costs.” (See Barr v. Workers’ Comp. Appeals Bd. (2008) 164 Cal.App.4th 173, 178 (Barr) [“section 5811 confers on the WCAB the discretion to award costs”].) CNLCP contends however, that the WCJ, and hence the WCAB, has imposed an additional requirement that costs be “‘in connection with some aspect of the litigation,’” which is nowhere contemplated under by the statute. CNLCP suggests that “by narrowing the scope of permissible costs to only ‘litigation costs’ the [WCJ] has run afoul of the requirement that workers’ compensation laws be liberally construed by the courts with the purpose of extending their benefits for the protection of persons injured in the course of their employment.” (See § 3202.) CNCLP also suggests that requiring Escobedo to absorb the cost of the Life Care Plan frustrates the “social public policy” set forth in the California Constitution to resolve workers’ compensation cases “expeditiously, inexpensively, and without incumbrance of any character.” (Cal. Const., art. XIV, § 4; see Johnson v. Workers’ Comp. Appeals Bd. (1984) 37 Cal.3d 235, 240-241.)
CNCLP presents this court with a hearing decision in Anthony v. Slaton & Son Roofing (2005, SAL 86850) (Anthony), in which the WCJ awarded reimbursement for a Life Care Plan prepared by CNCLP by reasoning that the WCAB “is interested in encouraging the parties to resolve their cases by settlement,” and in complex cases, neither the employee’s attorney nor the WCJ would be able to assess the adequacy of a reasonable settlement without a medical cost projection. In adopting the WCJ’s report and recommendation, the WCAB in Anthony agreed that “in light of the fact that Settlement Conferences are Mandatory, the cost for this report is considered in discretion of the Board as reasonable under 5811(a).”
While CNCLP presents various grounds and the Anthony decision to support its position that the WCAB should have ordered SCIF to reimburse the cost associated with preparing the Life Care Plan, CNCLP overlooks this court’s limited role in reviewing decisions of the WCAB, which is to “‘“determine whether the evidence, when viewed in light of the entire record, supports the award of the WCAB.”’” (Keulen v. Workers’ Comp. Appeals Bd. (1998) 66 Cal.App.4th 1089, 1095-1096.) Thus, so long as the WCAB’s findings “‘“are supported by inferences which may fairly be drawn from evidence even though the evidence is susceptible of opposing inferences, the reviewing court will not disturb the award.”’” (Judson Steel Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658, 664.)
Section 5811 reflects the legislative policy to accord the WCAB with the discretion to evaluate whether a consultants’ report is reasonable and necessary based on the facts of the particular case. (Barr, supra, 164 Cal.App.4th at p. 181.) Unlike in Anthony, the WCJ here most familiar with the proceedings and the positions of the parties concluded the report was not reimbursable because SCIF “does not appear to have contested any issues” and nothing in the Life Care Plan was necessary to achieve a resolution in the matter. Other than a general notion that the cost projections were useful in settlement negotiations, CNLCP does not point to any indication the Life Care Plan was relevant to the actual issues before the WCAB. Indeed, it would be illogical for the WCAB to award costs unless there was some direct connection to the litigation, as doing so would be outside the scope of the WCAB’s jurisdiction. (§§ 111, 5300, 5301.) We are also unconvinced that requiring an employer to provide a $24,424.44 cost-projection report promotes the constitutionally declared public policy of resolving workers’ compensation cases as inexpensively as possible. Accordingly, we can find no abuse of discretion.
DISPOSITION
The petition for writ of review is denied. This opinion is final forthwith as to this court.