June-05-2010-Article-Transfer-MPN

Transfer of Ongoing Care into the MPN

Labor Code § 4600(a) provides that:

"Medical, surgical, chiropractic, acupuncture, and hospital treatment, including

nursing, medicines,

medical and surgical

supplies, crutches, and apparatus,

including orthotic and prosthetic devices

and services, that is reasonably

required to cure

or relieve the injured worker from the effects of

his or her injury

shall be provided by the employer. In the case of his or her

neglect or refusal

reasonably to do so, the employer is liable for the reasonable expense incurred

by or on behalf of

the

employee in providing treatment."

Therefore, a defendant may be found liable for self-procured medical treatment if it
neglects or refuses to provide such treatment.

Upon notice of the injury, the employer must specifically instruct the employee what to
do and whom to see, and if the employer fails or refuses to do so, then he loses the right
to control the employee's medical care and becomes liable for the reasonable value of self-
procured medical treatment." Braewood Convalescent Hospital v. Workers' Comp.
Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 161-162 48 Cal.Comp.Cases 566

The question if a denied injury can be transferred into an MPN according to Labor Code
§ 4600(a) no! However, this has caused some litigation, which appears to be resolved by
case-by-case bases depending on the particular facts of that case.

I have found one case to date where the Court ordered a transfer into MPN when the
injury was initially denied it was a writ denied case

However what is not disputed is what the employer must due to transfer treatment into
an MPN and according to 8 CCR 9767.9 .

8 CCR 9767.9 was enacted to transfer ongoing medical care when the treatment of
admitted industrial injury was prior to the creation of the MPNs

8 CCR 9767.9 (d) If an injured covered employee is being treated for an

occupational injury or

illness by a physician or

provider prior to coverage of a

medical provider network, and the injured

covered employee's physician or

provider

becomes a provider within the MPN that applies to the

injured covered

employee, then the employer or insurer shall

inform the injured covered

employee

and his or her physician or provider if his/her treatment is being

provided by his/her

physician or

provider under the provisions of the MPN.

(e) The employer or insurer shall authorize the completion of treatment for

injured covered

employees who are being

treated outside of the MPN for an

occupational injury or illness that

occurred prior to the coverage of the MPN

and whose

treating physician is not a provider within

the MPN, including

injured covered employees who pre-designated a physician

and do not fall

within the Labor Code section 4600(d), for the following conditions:

However, in some recent cases some Judges are including denied cases where the injury
is subsequently accepted. Even under those cases the treatment may not be transferrable
if the employer does not comply with certain requirement or the injury / treatment falls
with the category of treatment that is not transferrable. In addition, the dispute must be
resolved that the condition is an exception and until resolved the employee is entitled to
treat outside the MPN

(e) The employer or insurer shall authorize the completion of treatment for

injured covered

employees who are being

treated outside of the MPN for an

occupational injury or illness that

occurred prior to the coverage of the MPN

and whose

treating physician is not a provider within

the MPN, including

injured covered employees who pre-designated a physician

and do not fall

within the Labor Code section 4600(d), for the following conditions:

(1) An acute condition. For purposes of this subdivision, an acute condition is a

medical condition

that involves a sudden

onset of symptoms due to an illness,

injury, or other medical problem that

requires prompt medical attention and that

has a

duration of less than 90 days. Completion of

treatment shall be provided

for the duration of the acute condition.

(2) A serious chronic condition. For purposes of this subdivision, a serious

chronic condition is a

medical condition due to a

disease, illness, catastrophic

injury, or other medical problem or

medical disorder that is serious in nature and

that persists

without full cure or worsens over 90

days and requires ongoing

treatment to maintain remission or prevent deterioration.

Completion of

treatment shall be authorized for a period of time necessary, up to one year: (A)

to complete a

course of

treatment approved by the employer or insurer; and (B)

to arrange for transfer to

another provider within the MPN, as

determined by

the insurer or employer. The one year period

for completion of treatment starts

from the date of the injured

covered employee's receipt of the

notification, as

required by subdivision (f), of the determination that the employee has a

serious

chronic condition.

(3) A terminal illness. For purposes of this subdivision, a terminal illness is an

incurable or

irreversible condition that has a

high probability of causing death

within one year or less.

Completion of treatment shall be provided for the

duration of a

terminal illness.

(4) Performance of a surgery or other procedure that is authorized by the insurer

or employer as

part of a documented

course of treatment and has been

recommended and documented by the

provider to occur within 180 days from

the; MPN

coverage effective date.

(f) If the employer or insurer decides to transfer the covered employee's medical

care to the

medical provider network, the

employer or insurer shall notify the

covered employee of the

determination regarding the completion of treatment

and the

decision to transfer medical care into

the medical provider network. The

notification shall be sent to the covered employee's

residence

and a copy of the

letter shall be sent to the covered employee's primary treating physician. The

notification shall

be written in English and Spanish and use layperson's terms to

the maximum extent

possible.

(g) If the injured covered employee disputes the medical determination under

this section, the

injured covered employee

shall request a report from the

covered employee's primary treating

physician that addresses whether the

covered employee

falls within any of the conditions set forth

in subdivisions (e)

(1-4). The treating physician shall provide the report to the

covered employee

within twenty calendar days of the request. If the treating physician fails to

issue the report, then the

determination made by the employer or insurer

referred to in (f) shall apply.

(h) If the employer or insurer or injured covered employee objects to the medical

determination by

the treating physician,

the dispute regarding the medical

determination made by the treating

physician concerning the transfer of care

shall be

resolved pursuant to Labor Code section 4062.

(i) If the treating physician agrees with the employer's or insurer's determination

that the injured

covered employee's

medical condition does not meet the

conditions set forth in subdivisions (e)(1)

through (e)(4), the transfer of care

shall go

forward during the dispute resolution process.

(j) If the treating physician does not agree with the employer's or insurer's

determination that the

injured covered

employee's medical condition does not

meet the conditions set forth in subdivisions

(e)(1) through (e)(4), the transfer of

care shall not go forward until the dispute is resolved.

Therefore, the question as to denied cases later admitted being transferred into an MPN
was not created by regulation, however a clear decisive decision cannot be found, and to
dispute that a denied injury regardless of the employer later accepting the injuring cannot
be transferred, would have to be litigated for a clear and definitive decision.

Update December 2011:
A number of recent panel decisions allow insurance companies to transfer medical treatment into
an existing MPN regardless of the underlying failure to first treat within the MPN: See Issues
Booklet on MPNs

The question raised in some cases is what happens when some body parts are admitted and some
denied as non-industrial and the applicant starts treating in a valid noticed MPN and then receives
notice that they are denying certain body parts but treating the others in the MPN. Is the injured
worker then required to get a second and third opinion within the MPN or can the injured worker
seek treatment outside the MPN?

An employer or its insurer is obligated to provide all medical treatment “that is reasonably
required to cure or relieve the injured worker from the effects of his or her injury.” (Lab. Code, §
4600(a).) Section 4600(a) further provides: “In the case of his or her neglect or refusal to
reasonably do so, the employer is liable for the reasonable expense incurred by or on behalf of the
employee in providing treatment.”

If the employer made an equivocal and inadequate offer of medical treatment, the employee could
select his or her own physician and obtain reimbursement for the reasonable cost of reasonable
self-procured medical treatment pursuant to section 4600. (Voss v. Workers' Comp. Appeals Bd.
(1974) 10 Cal.3d 583, 588 [516 P.2d 1377, 111 Cal. Rptr. 241] [39 Cal.Comp.Cases 56]

So the answer would arguable be that when the MPN doctor denied certain body parts as non-
industrial and the employer sends a letter of partial denial of injury that would be a
communication that the employer would not be providing medical treatment for the denied body
parts and an inadequate offer of medical treatment allowing the injured worker to treat outside the
MPN for the denied body parts, depending on how the partial denial was worded. Of course then
the utilization review and or medical legal process would take place to prove causation of the
denied body parts. Therefore it depends on the facts of the case.

According to the WCAB En Banc decision in Valdez v. Warehouse Demo Services/Zurich
[ADJ7048296] where on 4/20/11, , held that where unauthorized medical treatment is obtained
outside of a validly established and properly noticed MPN, the reports from these non-MPN
doctors are inadmissible and may not be relied upon, the Applicant would not be able to treat
outside the MPN and the medical reports would not be admissible to show causation or medical
necessity.

However, according to (Lab. Code, § 4600(a).) Section 4600(a) further provides: “In the case of
his or her neglect or refusal to reasonably do so, the employer is liable for the reasonable expense
incurred by or on behalf of the employee in providing treatment.”, and Voss v. Workers' Comp.
Appeals Bd. (1974) 10 Cal.3d 583, 588 [516 P.2d 1377, 111 Cal. Rptr. 241] [39 Cal.Comp.Cases
56] which held If the employer made an equivocal and inadequate offer of medical treatment, the
employee could select his or her own physician and obtain reimbursement for the reasonable cost
of reasonable self-procured medical treatment pursuant to section 4600.

In addition the case of Granado v. Workmen’s Comp. App. Bd. (1968) 69 Cal. 2d 399, 404 [71
Cal. Rptr. 678, 445 P.2d 294]. Would no longer be effective in arguing treatment for non-industrial
body parts, which held as follows:
“So long as the treatment is reasonably required to cure or relieve from the effects of the industrial
injury, the employer is required to provide the treatment, and treatment for nonindustrial
conditions may be required of the employer where it becomes essential in curing or relieving from
the effects of the industrial injury itself.

The next issue would be if the PTP in the MPN denies certain body parts but admits others are
the rules put forth in the En Banc Decision of Simmons v. California, 70 Cal. Comp. Cases 866
(W.C.A.B. 2005): which hold:

“If in prescribing treatment for the disputed body part, the treating physician either explicitly or
implicitly determines for the first time that the injury to the disputed body part is industrial, then
utilization review is not appropriate. Instead, the defendant must initiate the AME/QME process
within the deadlines established by section 4062(a)."
Why would the Defendants get a medical legal as to causation if they’re the ones who benefit of
the denial of causation?
I believe the best answer would be held in Kenneth Grom vs. Shasta Wood Products (2004) 69
Cal. Comp. Cases 1567 (WCAB significant panel decision)]. Which held that even with the
changes in the law, medical treatment is to cure and/or relieve from the effects of the injury.

According WCAB En Banc decision in Valdez v. Warehouse Demo Services/Zurich
[ADJ7048296] April 20, 2011, there exist two dissenting in part and concurring part opinions
that have the same concerns as stated above as follows:

CONCURRING AND DISSENTING OPINION OF COMMISSIONER BRASS

Assuming the existence of a validly established and properly noticed MPN, I concur in the result
reached by my fellow Commissioners. I concur, under the facts of this case, that the applicant’s
non-MPN medical reports are inadmissible, and that the defendant is not liable for the cost of
such reports. I also concur in returning this matter to the trial level to determine the existence of a
validly established and properly noticed MPN, as well as the issues of temporary disability and
EDD’s lien.
I dissent because there may be situations when an injured worker has good reasons to seek care
outside even a validly established and properly noticed MPN, and thus, an appropriate exercise of
authority under section 5703(a) would be to admit the reports of the non-MPN treating physician.

In the instant case, it does not appear that applicant made a good faith attempt to treat within
defendant’s MPN or to avail herself of the opportunities to change treating physicians and/or
request another opinion. Instead, apparently on the advice of her attorney, she left the MPN
after approximately three weeks. Such behavior should not be condoned. Consequently, if the
existence of a validly established and properly noticed MPN is determined, I concur with the
majority in finding the non-MPN reports inadmissible, thereby reversing the award of temporary
disability benefits based on those reports.

Nevertheless, I do not believe that this decision should be used to penalize injured workers when
it would be in their best interest to seek care outside a validly established and properly noticed
MPN. There may be a misdiagnosis, a lack of effective treatment, and/or an unreasonable delay in
providing care. An employee seeking care outside a validly established and properly noticed
MPN already has to pay for that treatment (Knight v. United Parcel Service (2006) 71 Cal.Comp.
Cases 1423 (Appeals Board en banc); § 4605) and for the cost of any non-MPN reports.
Furthermore, under the majority’s opinion, injured workers exercising their right under section
4605 to seek and pay for their own medical treatment outside the MPN are also foreclosed from
receiving any compensation based on the non-MPN reports.

Sections 4061 and 4062 require an injured worker to go outside the MPN to determine issues of
temporary and permanent disability, if they are in dispute. According to the majority’s decision,
the opinion of the non-MPN treating physician on those issues, regardless of its merits, would
not even be considered. It must be emphasized that receiving reports into evidence only means
that they will be considered. They may not be relied on unless they constitute substantial
evidence and are the most persuasive indication of the injured worker’s condition.

Section 5703(a) states that “[t]he appeals board may receive as evidence… [r]eports of attending
or examining physicians,” and provides authority to admit the reports of non-MPN treating
physicians. In situations which do not rise to the level of neglect or refusal to provide reasonable
medical treatment, but where an injured worker has nevertheless appropriately sought care outside
an MPN, the reports of the non-MPN treating physician should be admitted into evidence under
section 5703(a) for consideration of any issue in dispute.

/s/ Frank M. Brass___________________          FRANK M. BRASS, Commissioner

CONCURRING AND DISSENTING OPINION OF COMMISSIONER CAPLANE

I concur with the majority that a defendant is not liable for the cost of medical reports obtained by
an applicant outside of a validly established and properly noticed MPN, and that such reports are
inadmissible under Labor Code section 4616.6 to resolve any dispute related to treatment and
diagnosis. However, I dissent from the holding that these reports are inadmissible as to issues of
compensation, i.e., temporary disability and permanent disability.
Section 4616.6 states:

“No additional examinations shall be ordered by the appeals board and no other reports shall be
admissible to resolve any controversy arising out of this article.” (emphasis added.)

This article is 2.3, “Medical Provider Networks” (MPNs), and is comprised of sections 4616-
4616.7. These sections deal exclusively with diagnosis and treatment, and thus, section 4616.6
precludes admissibility of reports obtained outside an MPN only on those issues. Here, however,
the non-MPN medical reports were not admitted and relied on to resolve a dispute over diagnosis
and treatment, but one of compensation, i.e., temporary disability, about which the MPN statutes
are silent. Statutes governing temporary and permanent disability are contained in    Article 3,
sections 4650-4664 and are outside the scope of the MPN statutes under Article 2.3.

The majority’s opinion also fails to give effect to sections 4605 and 5703(a). These sections were
not repealed when the MPN statutes were enacted. It is a fundamental rule of statutory
construction that the Legislature is presumed to be aware of existing law.
Section 4605 states that “[n]othing contained in this chapter shall limit the right of the employee
to provide, at his own expense, a consulting or any attending physicians whom he desires.” Thus,
injured workers have the right to seek medical care outside a validly established and properly
noticed MPN if they pay for that care.   However, by excluding the reports of non-MPN doctors
from evidence, the majority penalizes an applicant for exercising that right by effectively
precluding him or her from receiving any benefits under the workers’ compensation system.

The issue of entitlement to temporary and/or permanent disability indemnity is usually triggered
by a medical report from the applicant’s treating doctor. Upon receipt of that report, a defendant
can either pay the benefits in question, or object and follow the procedures set forth in sections
4061 and 4062 to resolve the dispute. Under the majority’s holding that reports of non-MPN
physicians are not admissible for any purpose, a defendant when served with such reports can
simply do nothing. Without an admissible medical report, the applicant has been deprived of the
opportunity to even present a claim for temporary or permanent disability indemnity, and has
essentially been removed from the workers’ compensation system. This is an unduly harsh result
for exercising the right to seek treatment under section 4605, and certainly one not intended by the
legislature. Moreover, an injured worker, who has exercised the right to seek treatment with a non-
MPN doctor under section 4605, is already liable for both the cost of treatment and any non-
MPN reports, and admitting such reports into evidence merely means they will be considered and
not that they will necessarily be relied on to award compensation. Under the majority’s
disposition, an applicant would have to return to the MPN before he or she is eligible to receive
compensation, which may needlessly delay the resolution of a case and the provision of benefits
to injured workers.

Section 5703(a) provides that “[t]he appeals board may receive as evidence… [r]eports of
attending or examining physicians.”   As acknowledged by the majority, there is discretion under
section 5703(a) which, like section 4605, refers to “attending” physicians, to admit into evidence
the reports of non-MPN physicians on issues of compensation. The majority’s opinion,
however, takes away the discretion of the WCJ under this section to admit the reports of non-
MPN treating physicians on these issues in all cases where there is a validly established and
properly noticed MPN.

The majority has relied in part on Tenet/Centinela Hospital Medical Center v. Workers’ Comp.
Appeals Bd. (Rushing) (2000) 80 Cal.App.4th 1041 [65 Cal.Comp.Cases 477] for its disposition
here. Rushing, however, pre-dates the MPN statutes which were enacted under Senate Bill 899,
and does not involve an applicant exercising the right to seek treatment under          section 4605.
While I do not condone the actions of an applicant’s attorney directing a client to treat with a non-
MPN physician when a validly established and properly noticed MPN exists, an applicant
nevertheless has the right to do so under section 4605 and should not be penalized for exercising
that right. Moreover, in light of the specific restriction on admissibility to issues of diagnosis and
treatment by section 4616.6, the discretion provided by section 5703(a) can be utilized to admit
non-MPN reports on issues of compensation.
The issue here is only the admissibility of the non-MPN doctor’s reports. Once admitted, the
WCJ must decide if the reports constitute substantial evidence and the weight to assign to them.

Where there is a validly established and properly noticed MPN, Article 2.3 gives MPN doctors
exclusive control over issues of diagnosis and treatment. To extend that control to issues of
compensation goes beyond the MPN statutory mandate and gives no effect to sections 4605 and
5703(a).

Accordingly, I dissent and would affirm the WCJ’s decision insofar as he properly exercised his
discretion under section 5703 to admit the reports of the applicant’s non-MPN treating physician
on the issue of temporary disability. I would, however, return this matter to the trial level for the
newly assigned WCJ to address the defendant’s contention that these reports do not constitute
substantial evidence. If so, the parties should then proceed under sections 4062(a) and 4062.2 to
select either an agreed medical evaluator (AME) or a qualified medical evaluator (QME).

                               /s/ Ronnie G. Caplane_____________________

RONNIE G. CAPLANE, Commissioner

DATED AND FILED AT SAN FRANCISCO, CALIFORNIA

4/20/2011

Although presently this case is up on appeal it is still and En Banc decision and must be followed
until reversed as opposed to cases that are no En Banc.

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