by Louis Larres, Esq. and Scott Rountree, JD
I’m sure you’ve often wondered during a quiet moment alone, “Hey, are these Medical Provider Networks even constitutional?” Or perhaps you’ve worried, “If I litigate and lose on AOE/COE, have I waived the right to require the applicant to treat in my MPN?”
You haven’t? Good news! Someone else has wondered about, worried about, and litigated these issues for you–someone with too much time on his hands. 1
From the Fresno WCJ to the California Supreme Court, B&B recently defended against an applicant who was bound and determined to undercut your ability touse your MPN. The applicant claimed MPNs could not be used in denied cases. Of even greater concern, the applicant attacked the constitutionality of MPNs themselves. Applicant went down in flames. 2
Applicant (“Mary”) won the AOE/COE aspect of this pre-SB 899 case at trial. Mary’s PTP was not an MPN member. Thus, Mary was advised her care would be transferred from her PTP to the MPN. Outraged, Mary made clear she would fight. At the trial, Mary’s attorney announced this was to be a “test case” as to the constitutionality of MPNs. Unimpressed, the WCJ ordered treatment transferred to the MPN. The WCAB denied the applicant’s Petition for Reconsideration. The Court of Appeals summarily denied her petition for Writ of Review. Ever persistent, the applicant filed a Petition for Review before the California Supreme Court. This, too, was denied. 3
Despite the defense wins at every level, it is essential that you familiarize yourself with Mary’s arguments. Rest assured, they will soon be heard at a WCAB District Office near you. 4
- Liberal Construction?
Applicant began with a tried-and-true battle cry: “liberal construction.”CAAA members are eager to cite the first part of Labor Code 3202. It states that workers’ compensation laws are “liberally construed” in favor of the applicant. However, as they teach during the first year of law school, the first “rule of statutory interpretation” is simple: read the statute, the entire statute. 5 Labor Code 3202 goes on to state liberal construction is for “the purpose of extending benefits for the protection of persons injured in the course of their employment.”
Labor Code 3202 does not grant injured workers the right to treat in perpetuity with whomever they wish! There was no suggestion that Mary was being denied needed treatment. Medical care was being extended. The question was, treatment provided by whom?
ANSWER: Liberal construction does not defeat MPNs.
- MPNs Apply To Post-12/31/04 Injuries Only?
Mary argued Regulation 9767.9 is inconsistent with Labor Code 4616 and represents an improper expansion of the rights set out in Labor Code 4616.2.In brief, Labor Code 4616 grants employers the right to establish an MPN. Labor Code 4616.2 sets forth the “continuity of care” provisions. Subsequent to the passage of these provisions, the Administrative Director issued regulations to assist in the implementation of these statutes. Among these is Regulation 9767.9, which dictates the mechanism for transferring care into the MPN.
Mary correctly noted that an administrative body, such as the Administrative Director, may not implement regulations that alter, amend, enlarge, or otherwise impair the scope of a statute. Inasmuch as there was no proper notice of the defendant’s MPN, the applicant argued that Regulation 9767.9 was improper because it changed the intent and scope of Labor Code 4616.2, which was only to apply to post-12/31/04 dates of injury.
B&B countered Mary’s argument by noting Labor Code 4616 and 4616.2(b) both reference SB 899’s Section 47, which–as we all know–stresses the urgency of this legislation. Other than this reference, SB 899 is silent on how to transfer ongoing care to a newly created MPN. Thus, it was necessary for the Administrative Director to create such a mechanism. She did so via Regulation 9767.9 (“Transfer of Ongoing Care into the MPN”).
ANSWER: All injuries (pre- and post-12/30/04) may be transferred to an MPN.
- MPNs Are Unconstitutional?
Noting that the California Constitution provides for a workers’ compensation system, Mary argued that workers’ compensation benefits, including treatment, are a “fundamental right.” 6California courts have never recognized workers’ compensation as a fundamental right. The language in the California Constitution referenced by Mary simply imbued the legislature with the power to amend, delete, or enact laws to carry out a constitutional mandate (that is, the creation of a workers’ compensation system); it is not a guarantee of individual entitlement to a benefit in that system. As the WCAB noted in the en banc Babbitt decision 7, the MPN statutes made “only a procedural change in the law.” There is no infringement on any substantive right.
ANSWER: MPNs are constitutional.
- Denial of AOE/COE Waives MPN Rights?
Perhaps the most troubling of Mary’s arguments was the suggestion that because defendants initially denied the injury AOE/COE, this denial gave rise to a permanent waiver of any future attempt to assert medical control. 8Again, B&B prevailed, this time by noting that Mary had overlooked the fact that Labor Code 4616 does not distinguish between denied and accepted cases. Why should a court make such a distinction when the legislature has not? Mary was arguing for a dichotomy that finds no support in either the statute or logic! 9
ANSWER: MPNs are available to all cases, accepted and denied.
- MPNs Violate The Doctor-Patient Relationship?
Mary insisted that the defendants’ right to demand treatment through an MPN was trumped by her interest in an established “doctor-patient relationship.”Mary’s argument focused on the potential for treatment delay if she were forced to transfer to the MPN. This argument, of course, ignores reality. Treating physicians are changed routinely (and are, in most cases, fungible). Further, Mary offered no evidence that any harm or prejudice would occur.
Mary argued a new doctor would need to review endless medical records to get up to speed. She failed, however, to translate this record review into an inevitable treatment delay.
In the end, none of Mary’s arguments carried the day:
- The WCJ ordered Mary’s care transferred to the MPN.
- The Court of Appeal summarily denied Mary’s petition.
- The Supreme Court summarily denied Mary’s petition.
Your MPN is safe for now (protected, as it is, by Bradford & Barthel attorneys). And now you can use those quiet moments alone wondering and worrying about, anything else!
Louis A. Larres is Managing Attorney of Bradford & Barthel’s Fresno Office.
1 The authors of this article strongly resemble such individuals!
2 Or “up in smoke,” depending on your choice of vernacular!
3 Are you sensing a pattern here?
4 You can thank your favorite CAAA member for this!
5 Followed by the second rule: re-read the statute.
6 “Fundamental right” is legalese that triggers a type of analysis by a reviewing court called “strict scrutiny.” For a statute involving a “fundamental right” to survive “strict scrutiny,” that law must promote a “compelling government interest,,” be “narrowly tailored” to meet that goal, and be the “least restrictive means” of accomplishing the objective. This is a tough standard. Its application usually sounds the death knell for the statute being reviewed.
7 See Babbitt v. Ow Jing dba National Market and Golden Eagle Insurance Co. (2007), holding that a defendant may satisfy its obligation under Labor Code section 4600 to provide reasonable medical treatment by transferring an injured worker into an MPN in conformity with applicable statutes and regulations regardless of the date of injury or the date of an award of future medical treatment.
8 Applicant ignored the fact that defendants had issued a good faith, timely denial pursuant to the law. There was no suggestion of a frivolous denial.
9 Even “legal arguments” in California’s workers’ compensation occasionally require a modicum of logic!
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