by Nathan E. Nissim –
Sometimes even the best applicants’ attorneys are confronted with primary treating physician opinions that can be quite detrimental to their client, such as when that physician gives a nonindustrial diagnosis and discharge from care.
A nonindustrial diagnosis and discharge from care is problematic for applicants, because it could occur leading to a potential denial of the claim or benefits by the insurance carrier or a denial of additional treatment based on the Tenet/Centinela Hosp. Med. Center v. WCAB (Rushing) (2001) 65 Cal. Comp. Cases 477 [65 CCC 477] (WCAB en banc) due to the discharge by the primary treating physician.
Over my years as a workers’ compensation attorney, I became accustomed to the typical arguments and procedures applicants’ attorneys run into in this and a variety of other scenarios.
When this sort of thing occurs, the typical response is, “we need a PQME to resolve this issue.” However, many applicants’ attorneys take advantage of Labor Code Section 9767.7 which allows an applicant who disagrees with any diagnosis or treatment prescribed by the primary treating physician to seek a second and third opinion from other physicians in the medical provider network (MPN).
As I’ll describe in further detail below, second and third opinions from other MPN physicians can provide a less costly alternative to the med-legal evaluations carried out by qualified medical evaluators (QMEs) or agreed medical evaluators (AMEs).
To start the second opinion process under the statute, the applicant need only inform the insurance carrier that they dispute the treating physician’s opinion and request the second opinion. The insurance carrier should then provide the regional MPN list or means of accessing the MPN list to search it and the applicant should select another physician to provide the second opinion. Applicant should make every effort to schedule the second opinion appointment within 60 days. The carrier should then contact the doctor’s office and provide any necessary medical records prior to the second opinion appointment.
Should the applicant dispute the opinion of the second opinion physician, they can repeat the process above for a third opinion appointment. Between potentially three different physicians, either the issue can be resolved or if the doctors all come to the same conclusion or have such differing opinions regarding diagnosis or treatment, then this can help inform the parties that a Panel Qualified Medical Evaluation or Agreed Medical Evaluation may really be necessary.
If the second or third opinion physician’s provide alternative diagnoses or treatment recommendations, those can be requested through the usual treating physician process. The second and third opinion physicians may also order diagnostic testing if necessary to render their opinion.
While some might see this as letting the applicant have another bite at the apple, insurance carriers should realize that the second and third opinion process can be a cost effective way of resolving medical disputes in some cases that can save costs over immediately jumping to a medical-legal evaluation. It is also an effective tool when an applicant thinks they may need surgery (or they want a medical opinion that surgery isn’t necessary).
The second and third opinion consultations afforded by Labor Code Section 9767.7 can be a useful tool in some cases when primarily addressing diagnosis or treatment issues, and can even be used to potentially resolve cases without the need for proceeding to a PQME or AME. Why incur the costs of a medical-legal expert before it’s really necessary? Where it makes sense, utilizing a second and/or third opinion consult can solve issues and be a very cost-effective way of resolving claims while ensuring proper diagnosis and treatment are provided to the applicant. This can result in a win-win type situation for all parties. Not only is the availability of second and third opinions the law, but it can be a helpful tool for all involved.
Nathan E. Nissim is an associate attorney at Bradford & Barthel’s Oakland office. If you have any questions about med-legal discovery strategy or any other workers’ compensation defense topic, please feel free to contact him at 510.268.0061 or email@example.com.
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