How long does it take to create a habit? Some say twenty-one days. Others will tell you four weeks. Wait a minute. This is workers’ compensation, folks! One year later, and we’re still not in the Medical Provider Network (MPN) habit.
Despite allegations to the contrary from CAAA, the legislative intent behind MPNs is not to conspire against injured workers. The goal, rather, is to provide the transition of an injured worker’s medical treatment to an employer’s MPN unless one or more exceptions are applied. Exception, according to Webster’s Dictionary, means “that which is different, that which is excluded.” It means it doesn’t happen very often (despite CAAA’s efforts to the contrary)!
So what are those narrowly defined exceptions to the transfer of medical care to your MPN?
Section 9767.9 (e) is clear. Referencing Labor Code Sections 4616 and 4616.2, the transfer should proceed without a hitch unless one of the following conditions exists:
- An Acute Condition
Applicant’s medical condition involves a sudden onset of symptoms that requires prompt medical attention not to exceed “more than 30 days.” - A Serious Chronic Condition
Applicant’s condition is “serious in nature” and persists without full cure or worsens over 90 days and requires ongoing treatment to maintain remission or prevent deterioration. Treatment “shall” be authorized up to one year: (a) to complete a course of treatment approved by the employer, and (b) to arrange for transfer to the MPN. The one-year period starts from the date it is determined the employee has a “serious chronic condition.” - A Terminal Illness
Applicant’s illness is an incurable and irreversible condition with a high probability of causing death within one year. Completion of treatment shall be provided for the duration of the terminal illness. - Surgery
The applicant has been authorized to undergo surgery as part of a “documented course of treatment” within 180 days of the MPN’s coverage effective date.
Note that most of these exceptions are rather narrow. “Acute conditions” should delay transfer to an MPN for no more than a month. “Surgery” may delay things for six months, but no more. “Terminal illnesses” are unlikely to be seen in all but the very rarest cases. Thus, it should not be surprising that the game-playing we have seen at medical mills and in WCAB hallways has revolved around claims that the applicant suffers from a “serious chronic condition.”
There are simply too many loopholes to entice physicians and the applicant’s attorneys. Warning bells should go off in your head when a physician, upon realizing he may lose a patient to an MPN, decides, “I see it now..; there it is… a Serious Chronic Condition!”
How do you defend against such game-playing? The best defense is still a good offense! Keep in mind, if the physician has been treating the injured worker for more than ninety (90) days, you should have a clear diagnosis and treatment plan. Both the diagnosis and treatment plan should specify whether the condition is truly serious and chronic. Use the doctor’s own words (found in earlier reports) to attack a sudden (and self-interested) determination that the condition is a “serious chronic” one!
Important: Read Your Medicals! When was the injured worker diagnosed with a “serious chronic condition”? At some reasonable time during the regular scope of treatment, or just as you tried to transfer care to your MPN?
We have reviewed the various exceptions to MPN transfers. However, it’s not just the exceptions to MPN transfers that can drive you crazy. Did you know that you can lose the right to transfer medical control?
OUCH! Failure to Post = Loss of MPN Medical Control
In Robin Metoyer v. Wilshire West Dental; Zenith Ins. Co., LBO 368875, the applicant was permitted to treat outside of Zenith’s MPN based on her testimony that she had seen no posting of a notice of any formal procedures for reporting a work injury. In the WCAB’s Opinion and Order Denying Reconsideration, Commissioner Rabine (with whom Commissioners O’Brien and Cuneo concurred), determined that Labor Code section 3350(e) permitted the applicant to treat outside of the MPN. The foregoing is not a surprising determination. Labor Code section 3350(e) provides:
Failure of an employer to provide notice required by this section shall automatically permit the employee to be treated by his or her personal physician with respect to an injury occurring during that failure.
In short, one missing notice can undermine all of your hard work!
Make sure you (and your insureds) post the requisite notice in a place where it can be readily seen. If you have more than one business location, every location should have its own posted notice. In this way, you can counter one of CAAA’s most dangerous tactics!
Sherri Dozier is Director of Client Development and Relations for Bradford & Barthel, LLP.
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