June 20, 2012
In an attempt to bring some finality to the issues presented in the Valdez decision (at least for the time being), the California Court of Appeal recently addressed the admissibility of non-Medical Provider Network (MPN) reports.
In their May 29, 2012 decision (Elayne Valdez v. WCAB and Warehouse Demo Services, 2012 Cal. App. Unpub. LEXIS 4023), the Court of Appeal reversed a Workers' Compensation Appeals Board holding that precludes the use of non-Medical Provider Network treating physician reports. They concluded that "If the Legislature intended to exclude all non-MPN medical reports, the Legislature could have said so; it did not."
In reaching their decision, the court partially dissected Labor Code § 4616 to address what they believe is the true intent behind the establishment of Medical Provider Networks. In particular, they focused attention on Labor Code § 4616.6, which discusses the limitation of additional examinations beyond that which is found in Labor Code § 4616.4. § 4616.4 describes in detail the process of obtaining independent medical examinations after the applicant has sought out second and third opinion examinations upon disagreement with treatment recommendations or medical determinations of the primary treating physician.
The court also focused on the Tenet decision (Tenet/Centinela Hosp. Medical Ctr. v. Workers' Comp. Appeals Bd. (2000) 80 Cal.App.4th 1041) and argued that the case does not imply that the applicant cannot select someone outside the Medical Provider Network to serve as the primary treating physician. They concluded that Tenet does not support the conclusion that "[a]ccordingly, the non-MPN reports are inadmissible to determine an applicant's eligibility for compensation." Valdez, supra, 2012 Cal. App. Unpub. LEXIS 4023, 15.
In sum the Valdez decision annulled the lower court ruling and remanded the case back to the lower court for further proceedings. On its face, this seems like a huge victory for the applicant. But is it really? Did the Court of Appeal provide us with any information we did not already know? The original Valdez decision focused on the attempts of one applicant to bring in non-Medical Provider Network reporting to the claim, despite being provided with the opportunity for treatment within the Medical Provider Network. The Court of Appeals appears to expand the original Valdez findings. Regardless, if non-Medical Provider Network reports are to be permitted, then the defense against these reports simply shifts focus.
In preparation for this article, I found out that my colleague Michael D. Peabody of Bradford & Barthel's Tarzana office was in the process of litigating a nearly identical case I was working on that involved non-Medical Provider Network care.
In both cases, the applicant was participating in an established Medical Provider Network and was receiving care from a Medical Provider Network physician. In both cases, this promptly ended when the applicant obtained representation. Treatment promptly started with a non-Medical Provider Network physician.
We are both litigating the admissibility of these reports for purposes of further medical discovery, settlement, and for consideration and review by the Workers' Compensation Appeals Board should our cases go all the way to trial. We both are ultimately asking for the judge to either find the reports inadmissible, or have applicant's attorney to agree that payment will be the responsibility of the applicant.
On my current case, applicant's attorney has demanded I notify my client to re-start benefits and to allow treatment with his selected physician in light of this decision. I informed him I would be doing no such thing. As our case is nearing the end of litigation, my strategy and thoughts can be mentioned here.