by Timothy Rose –
Elayne Valdez v. Warehouse Demo Services; Zurich North America, adjusted by ESIS, (2011 Cal. Wrk. Comp. LEXIS 55), April 20, 2011
After treating in an established MPN, applicant’s counsel designated a non-MPN treating physician who began to actively treat the applicant. After an issue over temporary disability benefits surfaced, applicant’s attorney demanded benefits be provided based on the non-MPN reporting. At trial, the WCJ deferred the non-MPN treatment issue listed by the defendants on the Minutes of Hearing, indicating it was not related to TTD.
After the defense lost the TD issue, they filed for Reconsideration, contending the non-MPN reports were inadmissible, and, therefore, there was no substantial evidence to support the temporary disability award. Reconsideration was granted. 1
If an applicant has improperly obtained medical treatment outside of the employer’s MPN, are the reports of the non-MPN treating physician admissible in evidence?
Is the inadmissibility of the non-MPN reports applicable to the determination of both treatment and benefits?
HOLDING: Yes (though this was a split decision)
Where unauthorized treatment is obtained outside a validly established and properly noticed MPN, reports from the non-MPN doctors are inadmissible. Defendant is not liable for the cost of the non-MPN reports.
The WCAB has ruled non-MPN physicians do not qualify as “treating physicians” pursuant to Labor Code §4600, nor as medical-legal evaluators under Labor Code §4061/4062. Pursuant to Labor Code §4616.6, such reports are not admissible on medical treatment issues. Since the reports are neither treating physician reports nor validly obtained medical legal reports, they are not admissible.
“…Therefore, the non-MPN physician is not authorized to be a PTP, and accordingly, is not authorized to report or render an opinion on ‘medical issues necessary to determine the employee’s eligibility for compensation’ under section §4061.5 and AD Rule §9785(d) [Cal. Code Regs. Tit. 8, §9785(d)]. Moreover, for disputes involving temporary and/or permanent disability, neither an employee nor an employer is allowed to unilaterally seek a medical opinion to resolve the dispute, but must proceed under §4061 and §4062. Accordingly, the non-MPN reports are not admissible to determine an applicant’s eligibility for compensation, e.g., temporary disability indemnity.”
What Will Applicant Attorneys Argue?
The start of an applicant’s argument over non-MPN care will undoubtedly begin with Labor Code §4600. Labor Code §4600 states: “An employer is obligated to provide all medical treatment ‘that is reasonably required to cure or relieve the injured worker from the effects of his or her injury'” [Labor Code §4600(a)]. Labor Code §4600(a) further provides: “In the case of his or her neglect or refusal to reasonably do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment.”
Applicant’s attorney will undoubtedly rely on the Knight decision, 71 Cal. Comp. Cases 1423, which states defendants’ failure to provide the required notices to an employee of rights under the MPN can render the employer liable for reasonable medical care.
Note, these are also the two of the prime arguments used by lien claimants when demanding reimbursement for their liens!
Despite these arguments, the Valdez court has opined that remedies are already available to the applicant, should there be a dispute over reasonable or necessary medical care. There is no need to self-procure or go outside the MPN! Pursuant to §4616.3(c), where an injured worker “disputes either the diagnosis or treatment prescribed by the treating physician,” he or she “may seek the opinion of another physician in the [MPN],” and of “a third physician in the [MPN],” if the diagnosis or treatment of the second physician is disputed. The Board further noted even after these remedies had been exhausted, the employee could request an independent medical review of the treatment recommendations as a 4th-level of dispute resolution, via the panel QME or AME process.
After the initial medical evaluation arranged by the employer within the MPN pursuant to section §4616.3(a), “[t]he employer shall notify the employee of his or her right to be treated by a physician of his or her choice,” including “the method by which the list of participating providers may be accessed by the employee.” [Labor. Code §4616.3(b); Cal. Code Regs., Tit. 8, §9767.6(d).] In addition, AD Rule §9767.6(e) (Cal. Code Regs., tit. 8, §9767.6(e)) provides that “[a]t any point in time after the initial evaluation with a MPN physician, the covered employee may select a physician of his or her choice from within the MPN.”
What about obtaining a separate consultation with a private treating physician at the expense of the applicant?
The WCAB did consider whether the employee’s right to obtain an evaluation under Labor Code §4605 2 with his or her own consulting physician rendered the reports admissible. That idea was rejected. Relying on the previously stated reasoning regarding admissibility of reports under Labor Code §4616.6 and §4061/§4062, the majority ruled use of Labor Code §4605 does not generate reports which meet the criterion of admissibility. The WCAB also opined that such reports were not only inadmissible but not the financial obligation of the defendant.
Strategies for Addressing Reports, Liens, Payments of Indemnity Benefits
If we assert that treatment is not valid, we need to provide evidence of submission of MPN notices and posting requirements, which is why it is imperative employers have employees sign documentation acknowledging receipt of the MPN documentation. 3
Employers should keep track of MPN documentation in personnel files, and document how the information was distributed to each employee. Declarations regarding service of documents and proper posting of notices can be obtained from human resource contacts and safety supervisors. Administrative Director Regulation §10114.2 allows such declarations to be admitted into evidence where properly served before trial. 4
The employee’s deposition also provides an opportunity to document MPN implementation. It will often be an excellent strategy to confront the employee with a picture of the employer’s notices, which he might well remember once shown, as well as any copies of notices. Regardless of the resulting testimony, the defense may still be able to rebut assertions that notices were not properly provided. How many of us have walked into a break room or common area and not seen a posted notice? Hardly ever!
In the event TTD or TPD is demanded based on non-MPN care, first establish that the MPN is proper. If you are certain the MPN is properly established and the information properly disseminated, issue a benefits denial notice arguing the non-MPN care was improperly obtained, inadmissible, and, therefore, cannot support the claim for benefits. While you wait for the inevitable DOR to be filed, collect the information as discussed above.
If the court in Valdez determined that the defendant is not financially liable for treatment procured outside the MPN or under Labor Code §4605, why should we pay for liens? Why should we not hold the applicant liable? Ultimately, the decision on liens will come down to negotiation and the desire to settle the claim, as well as the wishes of our clients. That being said, we can:
- Agree to settle the claim if favorable and argue the liens are inadmissible at lien conferences and trials.
- Put the employee/applicant attorney on notice that our clients will withhold sufficient sums from PD to cover the lien claim. Failure to do so may expose our clients to the costs of the lien.
- Not resolve the claim with the employer agreeing to hold the applicant harmless on liens.
Finally, see also Scudder v. Verizon California regarding admissibility of non-MPN care. In that case, the WCAB determined applicant’s pre-designated treating physician did not refer him to the doctors. Instead, applicant’s attorney made the request for treatment to a physician (non-MPN), who in turn made a referral to another non-MPN for a surgical consultation. Always map out from where the referrals for care come!
. . . . To be continued with Part II, verifying the MPN is established and information is properly served on employees.
1 The court assumed that The MPN was validly established and that all proper notices regarding the MPN were provided to the applicant.
2 4605. Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires.
3 For examples of half-page notices that can be provided to clients and to employers, please email Tim Rose at email@example.com.
4 The written affidavit or declaration of any witness may be offered and shall be received into evidence provided that (i) the witness was named in a witness list exchanged either through agreement of the parties or pursuant to an order issued under section 10113.5 (c), (ii) the statement is made by affidavit or by declaration under penalty of perjury, (iii) copies of the statement have been delivered to all opposing parties at least 20 days prior to the hearing, and (iv) no opposing party has, at least 10 days before the hearing, delivered to the proponent of the evidence a written demand that the witness be produced in person to testify at the hearing. The Hearing Officer shall disregard any portion of the statement received pursuant to this regulation that would be inadmissible if the witness were testifying in person, but the inclusion of inadmissible matter does not render the entire statement inadmissible.
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