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Zheng v. New Grand Buffet, Inc., (03/20/2013)
The appellate court ruled the employee could not unilaterally change her treating physician before asking the State Board for such authority when there is a valid physician panel in place for that employer
Zheng sustained a compensable injury on May 27, 2010, and began receiving medical care and income benefits. Her employer suspended Zheng's income benefits on October 1, 2010, asserting that Zheng underwent a change in condition for the better based on a regular duty work release from her authorized treating physician ("ATP"). Zheng disputed that she had undergone a change in condition for the better and sought reinstatement of her income benefits, payment of certain medical expenses, permission to change her ATP, a late penalty, and an assessment of attorney fees.
The administrative law judge ("ALJ") found the employer's suspension of benefits "was not improper" in view of an August 24, 2010, statement from the ATP that he anticipated she would be able to return to work on August 31, 2010. The work release was prospective, however, depending on test results and an evaluation, and Zheng did not return to the doctor on August 31, 2010, as scheduled. Instead, Zheng elected to see another physician of her own choosing. After reviewing evidence from the physicians who saw Zheng before and after, the ALJ reinstated Zheng's income benefits as of October 1, 2010, concluding that the employer did not establish by a preponderance of the evidence that she had a change in condition for the better that allowed her to return to work without restrictions.
The ALJ also found the employer had a panel of physicians and that the employer's manager had explained the panel's function to Zheng when she had been rehired two months before she was injured. Zheng had received treatment from the three physicians on the panel: Dr. Chang, Dr. Wu, and Dr. Armstrong. However, instead of returning to Dr. Armstrong, she changed physicians on her own without Board approval. Because the employer had been providing appropriate medical treatment, it did not lose control of her treatment and was not responsible for paying the new physicians' expenses. The ALJ denied Zheng's request that one of her new physicians be designated as her ATP, finding that the employer should first have the opportunity to offer treatment by another physician of the employer's choice. Finally, finding that the case was closely contested on reasonable grounds, the ALJ denied the employee's request for attorney fees and penalties.
Both sides appealed the ALJ's decision to the Appellate Division of the State Board of Workers Compensation, which adopted the ALJ's findings of fact and conclusions of law. Both parties appealed this decision to the superior court, which conducted a hearing. The superior court did not issue an opinion within 20 days of the hearing, and thus the Board decision was affirmed by operation of law.
On appeal, the appellate court affirmed the ALJ's rulings because there was evidence of a valid panel, the panel had been explained to the employee, and she went to an unauthorized physician without permission of the employer/carrier. The employee's remedy was to petition the State Board for a change, rather than seeking treatment on her own.