by Patrick C. Gorman –
For obvious reasons the overwhelming majority of industrial claims filed in California (and, ultimately, adjudicated by the Workers’ Compensation Appeals Board), are in the venue of California’s major population centers. There is a correlative between the number of jobs, and ultimately labor force participation, and the number of industrial injuries filed in any geographic region.
The vast majority of claims handled and ultimately litigated fall within the greater Southern California Region, San Francisco Bay area, Sacramento, Fresno/Bakersfield, and beautiful San Diego area.
For a MPN to be valid, it must have at least three available primary treating physicians of each specialty to treat common injuries, and a hospital for emergency health care services, within 15 miles or 30 minutes of the injured worker’s residence or workplace. Furthermore, specialists (surgeons and consulting physicians) must be located within 30 miles or 60 minutes of the injured worker’s residence or workplace.
If these requirements are not met, the injured worker’s remedy usually permits him/her to obtain treatment outside of the MPN. Non-MPN facilities and applicant attorneys regularly challenge the validity of MPNs in order to obtain treatment outside of the MPN.
While the majority of industrial claims occur within the population centers of California, a vast geographical region outside of the population centers exists. Don’t forget: nearly 70% of California’s land mass consists of rural counties and small towns with the occasional small city of 100,000 or fewer residents.
Given the geographic distance between these cities, can there be a valid MPN? Applicants’ attorneys in these rural areas argue no: I disagree.
Fortunately, to a large degree the Administrative Director took this issue under consideration and supplied an alternative standard for access within these massive geographical regions. An alternative access standard applies to the Sierra Mountains area, the eastern desert basin, Central Coast, and the “North State” found on the coast, east to the Nevada border, North of Santa Rosa and Sacramento, up to the Oregon border.
This begs the questions, “What is the rural access standard and how is it applied?” But first allow me to lay some foundation. On one hand, while practicing in the North State, I have viewed MPN lists consisting of 37 physicians, none of whom are willing to accept Workers’ Compensation Cases. In those instances, most injured workers or their attorneys simply want to find a physician who understands their obligations. On the other hand, there is “physician shopping” in the work comp. system.
Per 8 CCR § 9767.5(b), a different access standard applies to areas where there is a health care shortage, defined as a rural areas where health facilities are located at least 30 miles apart.
While 8 CCR § 9767.5(b) states that alternative standards exist, it does not outline the actual alternative standards. What is this alternative standard when there is a desire to treat outside of the MPN by the injured worker or their attorney, and the applicant is not located in an extraordinarily isolated area of the state (such as the interstate 5, Interstate 101, or Highway 99 corridor)? In a noteworthy panel decision, (see Soto v. WCAB (2016) Cal. Wrk. Comp. P. D. LEXIS 26) Commissioners Zalewski, Lowe, and Newman addressed this very issue. The panel determined a rural MPN must have “primary treating physicians” available within 60 minutes or 30 miles of an injured worker’s home or work, and a specialist within 120 minutes or 60 miles of the worker’s home or work (essentially doubling the geographic region defined in 8 CCR 9767.5(a)).
Applicants wishing to treat outside of the MPN argue there are not three (3) physicians within each specialty who fall within an alternative geographic region. The Commissioners addressed that finding there only need be a sufficient number of physicians with specialties capable of providing applicant’s primary care. Furthermore, the WCAB confirmed that a refusal by a specialist to assume the role of a primary treating physician did not in of itself invalidate a defendant’s MPN. While there was no need for the WCAB to delve into how many physicians constitute a sufficient number, the general rule I have followed is three (3) physicians, with specialties capable of providing applicant’s primary care, and willing to assume the role of treating physician must be present within the MPN.1
Facing an applicant who is treating outside of the MPN? File for an Expedited Hearing, draft your Points & Authorities and get ready to go to Trial…and win!
1 Note: In one instance the applicant had already treated with one of the three physicians within the MPN, and attempted to treat outside of the MPN. In that case, the prior treating physician still counted as one of the three.
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