Non-MPN Provider Reports Inadmissible

Valdez v. Warehouse Demo Services (2011) 76 Cal. Comp. Cases ____: After a 9 month hiatus from en banc opinions following the June 3, 2010 Mendoza opinion, the Appeals Board has returned with a vengeance. For the second month in a row the WCAB has taken on a “big ticket” item. While the March 17, 2011 Guitron opinion settled the decade long debate over liability for interpreters for medical treatment in favor of injured workers, the Valdez opinion puts one in the employer’s column. After reading these two decisions no one can accuse these Commissioners of ducking the difficult issues.

Finally, we have an answer to another of the most frustrating problems created by the sloppy drafting of SB 899. As practitioners are well aware, SB 899 created Medical Provider Networks (MPN). MPNs are physician networks established by employers or insurance carriers who have sole discretion on what doctors to include. Since the first MPN was established injured workers and the applicant bar have been seeking ways to avoid MPN control. Sometimes these efforts are legitimately fueled by a lack of quality care being offered within the MPN. More often the efforts were designed to direct employees to physicians who would maximize periods of temporary disability and ratings of permanent disability. The applicant would then seek awards of benefits based on these reports.

As a result two questions needed to be answered. First, when an employee is subject to a valid MPN but treats outside, who pays for the services? Second, are reports of non-MPN providers admissible? The WCAB en banc has answered both questions in favor of the employer.

Facts of Valdez:

Elayne Valdez suffered an admitted injury on October 7, 2009 and was seen by a MPN physician that day. On October 31, 2009 her attorney designated a non-MPN physician as primary treating physician. That doctor certified her as temporarily totally disabled and the Employment Development Department (EDD) began paying indemnity benefits.

On July 22, 2010 the parties proceeded to trial on Valdez’ entitlement to temporary disability indemnity. The defendant attempted to raise MPN control as an issue and sought exclusion of the reports of non-MPN providers. The trial judge deferred the issue of MPN control because he concluded it was not relevant to the issue of temporary disability. The reports of the non-MPN providers were admitted and relied upon by the WCJ in awarding temporary disability.

Defendant sought reconsideration. Strangely, applicant did not file an answer. [Note: This failure is inexcusable, and strangely similar to SCIF’s failure to answer in Guitron.]

WCAB Holding

The WCAB held “where unauthorized treatment is obtained outside a validly established and properly noticed MPN, reports from the non-MPN doctors are inadmissible, and therefore may not be relied upon, and that defendant is not liable for the cost of the non-MPN reports.”

Commissioner Brass concurred and dissented by arguing that Labor Code section 5703, subdivision (a) should be interpreted to allow the trial judge the discretion to admit non-MPN reports.

Commissioner Caplane concurred and dissented as well. She argued that Labor Code sections 4605 and 5703, subdivision (a) combined allow for the admission of non-MPN reports.

WCAB’s Reasoning:

In a relatively brief 10 page opinion (Guitron by comparison ran 28 pages) the WCAB managed to cram in more citation to case law and statutes than one would think humanly possible. The WCAB proceeded under one big assumption – that the MPN was validly established and that all proper notices regarding the MPN were provided to the applicant. The case was remanded for determination of that issue since the WCJ had deferred it.

The Commissioners explored all the procedures an employer must follow to have an enforceable MPN. These include providing written notice about the MPN, the right and procedures for changing doctors and the right to second and third opinions within the MPN. Citing to its earlier opinion in Knight v. United Parcel Service (2006) 71 Cal. Comp. Cases 1423 [en banc] the Board cautioned that failure to provide the required notices renders the defendant liable for non-MPN services. Yet the WCAB seemed to insert limiting language in to Knight’s holding. Specifically the Board stated “a defendant's failure to provide the required notices to an employee of rights under the MPN which results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee.” The Commissioners seemed to be seeking to soften Knight by returning to Labor Code section 4600, subdivision (a) which provides and employer is liable for self-procured treatment in the case of “neglect or refusal of care.”

The WCAB also discussed all the options available to an injured worker within an MPN which apparently make it fair and reasonable. These include the right to change doctors, the second, third and independent medical review system and even the right to a consulting specialist on a case by case basis.

Moving to the main issue, the WCAB explained that Labor Code section 4616.6 provides that non-MPN reports are inadmissible on the issues of disputed treatment or diagnosis issues.

The WCAB then moved on to California Code of Regulations, title 8, section 9785 and venerable decision of the Court of Appeal in Tenet/Centinela Hosp. Med. Ctr. v. Workers’ Comp. Appeals Bd. (Rushing) (2000) 80 Cal.App.4th 1041 [65 Cal. Comp. Cases 477]. The Commissioners explained that there can only be one primary treating physician (PTP) at a time. When an injured worker has left a valid and properly noticed MPN, “the non-MPN physician cannot be the PTP; the MPN treater remains the PTP.” The WCAB also warned that employees who ignore an MPN from the start do not get around the issue. There simply is no valid PTP. If an injured worker disputes a PTP’s determinations he or she must resolve those disputes either through the MPN or the AME/QME process as applicable. It is only the PTP or a proper AME or QME who can render admissible opinions on entitlement to benefits.

The WCAB then tackled the inconsistency created by Labor Code section 4605 and 5703, subdivision (a). The first allows an injured worker to self-procure treatment at his or her own expense. The second allows the admission of reports of “attending or examining physicians.” The Commissioners dismissed section 4605 by noting it was silent on admissibility and thus not in conflict with its holding. Section 5703 was a bit trickier. The WCAB noted its language did not mention “treating physician.” Under sections 4061.5 and 9785 a “treating physician” is required to comment on all medical issues and an employee’s eligibility for compensation. Sections 4616.6, 4061, 4062 and 9785 all provide that only a PTP, AME or QME may issue admissible reports on certain issues. The admissibility under section 5703 is discretionary. Thus, the Commissioners concluded that the only way to reconcile the conflicts was to exclude non-MPN treating physician reports. Panel decisions to the contrary were disavowed.

The Commissioners concluded their opinion by stating explicitly that an employer is not liable for the charges of non-MPN provider. In doing so it again seemed to soften Knight. “Where there has been no neglect or refusal to provide reasonable medical treatment, a defendant is not liable for the medical treatment procured outside the MPN.”

Aftermath:

This opinion is packed with clarification of multiple sub-issues which every practitioner should review. It also sets the stage for a major showdown at the Court of Appeal. It is highly likely CAAA and a conglomeration of medical lien claimants will join together to fund a Petition for Writ of Review to the Court of Appeal. Both groups stand to lose millions of dollars if non-MPN provider reports are inadmissible. The fact two Commissioners argued for the admissibility of non-MPN treating physician’s reports at least under some circumstances suggest the Appellate Courts could interpret the law differently.

This decision again emphasizes how poorly SB 899 was drafted. It is ironic that one day after the seven year anniversary of its passing the California Legislature has done nothing to clean it up. Even worse it has done nothing to correct its unintended consequences. In all likelihood it will instead “reform” the system once again in the next few years with the result being a completely new set of solutions and problem to be litigated.

For now, at least we do have a bright line rule. If an employer has a valid MPN, all the notices were given and treatment was not refused or neglected, non-MPN providers cannot recover from defendants and their reports are inadmissible.

Opinion Filed April 20, 2011.

Heggeness,Sweet, Simington & Patrico, A.P.C

Non-MPN Provider Reports Inadmissible