Valdez v. Warehouse Demo Services (2011) 76 Cal. Comp. Cases _____ [en banc]: The WCAB has affirmed its earlier decision in Valdez v. Warehouse Demo Services its entirety. In a decision issued only 2½ months after Reconsideration was granted for further study, and 5 months after its original en banc decision, the WCAB has stood its ground. This new decision once again holds that reports of non-MPN treating physicians are “inadmissible and may not be relied upon to award benefits.”
The decision restates in large part the WCAB’s reasoning behind its original decision. It also rejects the various arguments raised by applicant in her Petition. The only tweak seems to be a clarification.
The Commissioners seem to have pulled a reverse Sandhagen on the applicant’s bar. Specifically, the opinion states that medical diagnosis or treatment issues must be resolved within the MPN. In other words an injured worker is not entitled to a Qualified Medical Examination on these two issues. Although not discussed by the WCAB, it appears the only time an injured worker can get a QME on a medical treatment issue under Labor Code section 4062 is after an objection to a utilization review decision. An injured worker, like an employer still has the right to a QME under Labor Code sections 4061 and 4062 on disputes regarding other issues.
In reaching its decision the Commissioners stressed several times that Valdez seemed to leave the MPN for “no apparent reason and without regard to MPN procedures…” The Commissioners stressed “applicants who have chosen to disregard a validly established and properly noticed MPN, despite the many options to change treating physicians and to challenge diagnosis or treatment determinations within the MPN … have removed themselves from the benefits of the Labor Code.”
There were two Concurring and Dissenting Opinions. Commissioner Brass would interpret Labor Code section 5703, subdivision (a) to allow the trial judge discretion to admit non-MPN reports in certain cases. Commissioner Caplane repeated her early opinion that non-MPN reports should be admissible on issues other than medical treatment and diagnosis.
This certainly not the end of the litigation of these issues. Both sides will be lining up their amicus curiae to file briefs with the Court of Appeal. There is too much money at stake for injured workers and lien claimants. It is unclear whether the Court will take up the issue. For now Valdez is the law of the land. When an employer has a valid MPN and the injured worker is properly in that MPN, reports from non-MPN physicians are not admissible for any purpose.
Opinion Filed September 27, 2011.
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