by Timothy W. Rose
with special thanks to Michael D. Peabody, Esq.
In an attempt to bring some finality to the issues presented in the Valdez decision (at least for the time being), the California Court of Appeal recently addressed the admissibility of non-MPN reports. In their May 29, 2012 decision (Elayne Valdez v. WCAB and Warehouse Demo Services, 2012 Cal. App. Unpub. LEXIS 4023), the Court of Appeal reversed a WCAB holding that precludes the use of non-MPN treating physician reports. They concluded that “If the Legislature intended to exclude all non-MPN medical reports, the Legislature could have said so; it did not.” In reaching their decision, the court partially dissected Labor Code § 4616 to address what they believe is the true intent behind establishment of MPN’s. In particular, they focused attention on Labor Code § 4616.6, which discusses the limitation of additional examinations beyond that which is found in Labor Code § 4616.4. § 4616.4 describes in detail the process of obtaining independent medical examinations after the applicant has sought out second and third opinion examinations upon disagreement with treatment recommendations or medical determinations of the primary treating physician.
The court also focused on the Tenet decision (Tenet/Centinela Hosp. Medical Ctr. v. Workers’ Comp. Appeals Bd. (2000) 80 Cal.App.4th 1041) and argued that the case does not imply that the applicant cannot select someone outside the MPN to serve as the primary treating physician. They concluded that Tenet does not support the conclusion that “[a]ccordingly, the non-MPN reports are inadmissible to determine an applicant’s eligibility for compensation.” Valdez, supra, 2012 Cal. App. Unpub. LEXIS 4023, 15. In sum the Valdez decision annulled the lower court ruling and remanded the case back to the lower support for further proceedings. On its face, this seems like a huge victory for the applicant. But is it really? Did the Court of Appeal provide us with any information we did not already know? The original Valdez decision focused on the attempts of one applicant to bring in non-MPN reporting to the claim, despite being provided with the opportunity for treatment within the MPN. The Court of Appeals appears to expand the original Valdez findings. Regardless, if non-MPN reports are to be permitted, then the defense against these reports simply shifts focus.
In preparation for this article, I found out that my colleague Michael D. Peabody of our Woodland Hills office was in the process of litigating a nearly identical case I was working on that involved non-MPN care. In both cases, the applicant was participating in an established MPN and was receiving care from an MPN physician. In both cases, this promptly ended when the applicant obtained representation. Treatment promptly started with a non-MPN physician. We are both litigating the admissibility of these reports for purposes of further medical discovery, settlement, and for consideration and review by the WCAB should our cases go all the way to trial. We both are ultimately asking for the judge to either find the reports inadmissible, or have applicant’s attorney agree that payment will be the responsibility of the applicant. On my current case, applicant’s attorney has demanded I notify my client to re-start benefits and to allow treatment with his selected physician in light of this decision. I informed him I would be doing no such thing. As our case is nearing the end of litigation, my strategy and thoughts can be mentioned here.
The Court of Appeal identified a few of the types of non-MPN reports which may be considered. They mention treating physician reports to the AME or QME under Labor Code § 4062.3(a). Self procured medical reporting under Labor Code § 4605 is permitted. A properly pre-designated treating physician prior to the start of a claim is another. Court ordered evaluations and independent medical examination reports may also be allowed. Treating physician reports obtained when the MPN is not properly established, or notice under the Knight decision is not properly provided is another option. And, we have the AME/QME report process under Labor Code § 4061 and § 4062. Again, these are all reports which were already known to be admissible. The trick is to identify which of these categories the non-MPN care falls under. If the reporting does not fall under one of these categories, you should always consider litigation on the admissibility of the report(s).
It is important to remember that the original Valdez decision focused time and time again on the fact that the applicant left an established MPN to obtain non-MPN care. The court took issue with applicant attorney’s attempt to circumvent the established program, only to argue later that the care was self-procured. In reality, the applicant simply began treatment outside of the MPN. The WCAB initially found that the medical care sought in that particular case was inadmissible because it strayed from within the MPN. The Court of Appeal punted on the issue of proper notice to the applicant. As did the WCAB when deciding the original decision. Lip service to proper notification was provided, and it was “assumed” the notices to the applicant were proper. If your goal is to defend non-MPN care that is not self-procured, not ordered by the court, and not part of the medical-legal process, then your MPN house must be in order.
Always follow the Knight decision and establish your MPN
The WCAB stated in their original opinion that “it is those applicants who have chosen to disregard a validly established and properly noticed MPN, despite the many options to change treating physicians and to challenge diagnosis or treatment determinations within the MPN, who have removed themselves from the benefits provided by the Labor Code.” Elayne Valdez v. Warehouse Demo Services, America 76 Cal. Comp. Cases 970, 980. Employers are required to provide workers’ compensation information to their employees. Their duty to provide notice of workers’ compensation information begins prior to an injury. New employees are required to be provided with written information about the workers’ compensation process and where and how to obtain medical treatment at the time of hire or before the end of the first pay period. Lab. Code § 3551; Cal. Code Regs., tit. 8, § 9880. Other employees must be provided documentation prior to injury as well, including at the time of transfer into an existing MPN, or at the time a new MPN is created. The employer must also post the California State approved Notice of Information about the workers’ compensation process and where and how to obtain medical treatment. Lab. Code § 3550; Cal. Code Regs., tit. 8, § § 9881 and 9881.1. If the employer fails to do so, the employee is permitted to treat with their personal physician. Lab. Code, § 3550(e).
Second, notice must be provided at the time of injury. Under Labor Code § 5401 and § 5402, within one working day of receiving notice of injury, the employer must provide the applicant with a claim form, information about benefits available to the applicant and the workers’ compensation process. For additional reference, see California Code Regs., tit. 8, § § 9810 through 9812. Additionally, the employer is required to give the applicant notice of information about use of the MPN and provide them information on the right to be treated by an MPN physician of choice after the first visit. They must also provide information on the MPN and how to access it, and must also discuss the second and third opinion process.
Establishment and proper documentation of the MPN is important. We frequently see challenges to documentation that was allegedly not provided to the applicant at the proper time. Or, claims that the documentation was incomplete, or in an improper language. The challenges will only increase due to extra scrutiny. Attorneys will challenge the MPN paperwork as an attempt to treat outside of the MPN. It becomes even more important for employers to work with carriers and TPA’s to document when and how paperwork was provided.
I cannot stress the importance of adhering to these guidelines in order to mount a proper MPN defense. This is the foundation which all additional layers of defense are built upon. While defects can be corrected (See the Helen B. Jakes panel decision and Babbitt v. Ow Jing (2007) 72 Cal.Comp.Cases 70 (Appeals Board en banc)), one should not make it a point to start to defend their position by cleaning up a mess.
Look at the other non-MPN treatment options
Fortunately, most of the remaining options for non-MPN care are simple to review and digest. An independent medical examination, or other discovery ordered by the Court is just that, a court order. As long as the decision is sound and rational, the discovery will likely move forward. The § 4061/4062 process is another large animal that has many facets and issues. This does not need to be addressed in detail, except to make mention that the request for a QME must be made after a valid AME offer is rejected or not responded to. The time frames under Messele must be adhered to. Replacement panels must comply with the code of regulations. The strike process and applicable guidelines must be followed.
Information presented to the AME or QME is an area that will bring about litigation as a result of this decision. If an MPN was not properly established, treatment can commence until the issue is resolved (see above). And, we have instances where the MPN cannot be enforced due to limitations in the number of physicians or specialties in a geographic region.
Argue against the claim of “all relevant medical evidence” being admissible
The Court of Appeal spent a decent amount of time addressing Labor Code § 4062.3(a) and the language “any party may provide to the qualified medical evaluator selected from a panel any of the following information: (1) Records prepared or maintained by the employees treating physician or physicians (2) Medical and nonmedical records relevant to determination of the medical issue”. If non-MPN reports are to be submitted in this manner, then we must first clarify how they are being submitted and what category they fall under. One option for applicants is to argue Labor Code § 4600 and treatment “that is reasonably required to cure or relieve the injured worker from the effects of his or her injury”. Which, they claim includes non-MPN treatment reports. The Court of Appeal focused quite a bit on legislative intent and the use of particular wording in prior decisions. We can now apply the same method of thinking. The Court of Appeal may have clarified the use of non-MPN care, but they did not do two things. First, they did not do away with MPN’s, or their relevance. They did not say an MPN could not be enforced and benefits made contingent on compliance within it. Second, they did not provide for non-MPN reports to be admissible aside from the options listed above. As an added bonus, I included some other non-MPN options for reference. Contrary to the opinion of a growing number of applicant attorneys, the 5/29/12 decision did not say that any non-MPN treatment was permitted. It simply clarified what non-MPN treatment is permitted.
Labor Code § 4605 and self-procured medical treatment
In the limited time since 5/29/12, and even prior to this decision, I have seen this as the most contentious and likely litigated issue. As my esteemed colleague Mr. Peabody so eloquently stated, there will be a thin line between the interpretation of what is “self-procured” and lien claimants who risk not being paid. In the case I am presently litigating, this is an important distinction. Labor Code § 4605 specifically mentions care provided at the applicant’s own expense will be permitted. The applicant was treating with a non-MPN provider despite being provided with proper documentation and compliance under the Knight decision. They started their claim with treatment in the MPN. Our MPN will stand up under scrutiny. When I filed for a conference to address the non-MPN care, applicant’s counsel produced a miraculous P&S report just prior to the conference. His new argument was that the matter was now moot and we could proceed with settlement or review by the QME given our objection to the report.
Not so fast. I argued that if we are to go to a QME, I did not believe the reporting of the non-MPN should be reviewed. He argued the care was self-procured and alternatively, it was a lien issue. This is a complete contradiction. How can treatment be paid for by his client, yet there is also a demand that we pay? When I asked for something in writing to confirm that the lien would be withdrawn as the applicant would assume financial responsibility for the “self procured” medical care, applicant’s attorney would not agree to this. At our hearing, the Judge was hesitant to set the matter for further litigation as well. My argument remained the same: the payment of the services and person responsible for the same must be resolved prior to further discovery or settlement. If the medical reporting truly is self-procured, then the reports are admissible and we can continue. If the treatment was provided on a lien basis, then I have an MPN argument to address, and I wanted a judge to rule on whether or not we are responsible for payment, or if the reports were admissible. The matter cannot be deferred until after settlement as a medical-legal evaluator may comment on them. And if I consider any of the disputed reporting for settlement, then I give merit to the charges and open my client to exposure.
To clarify, we must distinguish between treatment resulting in a lien and self procured care. Treatment that results in a lien includes a demand that the defendant pay for the medical care. The medical provider is arguing that the care is reasonable, necessary and proper. They have a dispute with the complete lack of payment or approval, or a partial denial of payment or approval. At the conclusion of the claim, they expect the Defendant to come out of pocket to resolve their billing dispute. Self-procured care is quite different. Labor Code § 4605 specifically mentions the cost of the self procured care is to be the responsibility of the applicant, not the defendant. There is also a difference between “self- procured” care and “free choice” in treatment. If the MPN in question is properly established and noticed, the employer retains significant medical control. Changes of treating physicians within the MPN and second or third opinions are the options the applicant has to exercise their “free choice” within the MPN itself.
Contrary to the narrow interpretation of Labor Code § 4903(b), medical expenses incurred under the Labor Code § 4600 series should not include § 4605 specifically. Why? The right to reimbursement for self-procured medical expense arises only when the employer has neglected to refuse to exercise their duty to provide medical treatment. This generally occurs in an outright claim denial. The MPN treatment they are offering and providing is satisfying their obligation to provide medical care. Referring to the original Valdez decision, recall that the employer provided multiple options to the applicant within their MPN. The applicant ignored the offer.
So what can defendants do?
Multiple steps to a proper defense have been addressed above. Further recommendations are as follows:
- Never be afraid to litigate an issue in which you believe you are correct, and in which you have solid case law and the Labor Code on your side.
- Despite various interpretations, I do not see the most recent decision by the Court of Appeal discarding MPNs. They remain a powerful and effective tool defendants should use.
- As a practice tip, the WCAB can take judicial notice of the MPNs listed on the State website of participating programs.
- Involve the employer in the process. Make sure they provide proper documentation of their attempts to provide the proper paperwork in compliance with Knight.
- Simply having someone testify as to the proper procedure is not always sufficient. Maintaining written documentation in a personnel file is always best.
- Keep quality claims file documentation. I always recommend sending important documents, even “form” documents with a proof of service to verify the document and any attachments included were actually sent.
- Fix MPN defects as seen in the Jakes and Babbit decisions. Be aware of any claims for “chronic” conditions during this process, as it could affect your ability to return the applicant to the MPN.
- Make sure your defense attorney is aggressive and researches the issues thoroughly.
- Attempt to compromise if there is some error in the notification process or MPN specialists are not available in the region of the applicant.
- If the applicant insists the care is self-procured, then obtain this in writing before you agree to send any documentation for review by a medical provider or settle the claim.
- If possible, try to get the lien withdrawn.
- If you have a properly established MPN and applicants refuse to use it, make the liens their problem – not yours. Go to trial on the issue of whether non-network treatment is truly “at the applicant’s own expense”.
- If the reports are sent for review without consent, argue the admissibility of not only the non-MPN reporting, but also of any further report that is tainted.
Valdez may be remanded at this point, but it is not dead. And the core issues presented in the original case still stand strong. Use them to your advantage.
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