Supreme Court Rules on Smith/Amar

Date: May 11, 2009, Volume: 09-5, Issue: 01

Today, the California Supreme Court issued its decision in the Smith/Amar cases. Please recall these cases involved the issue of whether after a stipulated award for future medical care, if an employer applies utilization review and therefore raises the reasonableness issue of specific care, is that action the equivalent of a petition to terminate that care under Lab C 4607? (If so, the applicant attorney is entitled to attorney fees if they prevail). Please recall the facts of each case:

Smith v. WCAB (B190054): Smith suffered injuries to the right shoulder, neck and psyche on a cumulative trauma basis. He was awarded PD and future medical care. Eight years later, SCIF refused to agree to authorize epidural injections. After utilization review and after using an AME, who agreed Smith needed the injections, applicant’s attorney, William Herreras, filed a claim for hourly attorney fees. He asked for $1,485.00, contending that SCIF’s informal UR was the same as if they had petitioned the WCAB to terminate the medical award under Lab C 4607.

Amar v. WCAB (B199655): SCIF had stipulated to an award for future medical care, which included treatment for weight loss and non-industrial diabetes. Based on utilization review, and without petitioning to terminate the medical award, SCIF simply denied the treatment. The WCAB thereafter ordered the weight loss program reinstated.


  • Lab C 4607 only authorizes attorney fees when a party institutes proceedings to terminate
  • an award for future medical care and not simply when the party undertakes to conduct utilization review on a particular treatment request
  • Lab C 4607 deals only with a party who is intending to terminate an award for future medical treatment, not disputing a specific or particular type of treatment
  • This Court clarifies the distinction between determining whether a particular medical treatment is justified vs. efforts to attack the underlying validity of the entire medical treatment award.
  • A defendant may dispute the specific need for treatment without that dispute being deemed a termination of the award and hence the liability for attorney fees under Lab C 4607.


The Supreme Court has otherwise affirmed that when a defendant refuses to provide medical treatment, even under an award, there is still a remedy–that being penalties AND ironically, attorney fees under Lab C 5814.5. Therefore, if the defendant has unreasonable delayed or refused treatment upon an award, the employer may still be liable for penalties and attorney fees, but only within this limited context and not within the broader scope of conducting utilization review.

Noting that in Smith and Amar, in neither case was the defendant attempting to end the medical award but merely contesting the need for a “particular” type of treatment under the award; this court makes the critical distinction between contesting the need for a particular type of treatment, which is within the scope of utilization review, vs. the very narrowly applied action to terminate all liability for the entire award for future medical care. Only under the latter effort, if unsuccessful, will applicant’s attorney be entitled to attorney fees, under Lab C 4607. Otherwise, the remedies left are utilization review and enforcement proceedings, which may include allegations of penalty and attorneys fees under Lab C 5814.5 but not Lab C 4607.


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