July 02, 2012
The Second District Court of Appeal recently issued their decision on this case which involves in part, the admissibility of non-Medical Provider Network doctor's reports. This is an unpublished decision and therefore has no precedential value. In other words, it cannot be cited in other cases with the same or similar issues. In summary, it says in part that employee-requested visits to his/her own physician under L/C 4605, i.e. non-Medical Provider Network diagnosis, treatment and attendant reports which are paid for by the employee are admissible.
While the applicant's attorney will ask the court to publish it, the probability seems very low in that the case was remanded to the trial court to deal with the admissibility issue as well as other issues left unsettled by the Workers Compensation Judge at the time of trial.
Labor Code (L/C) 4605 was first enacted in 1917 under the Insurance and Safety Act. Sec. 9(a) is most interesting in that it reads:
"Such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches and apparatus, including artificial members, as may reasonably be required to cure and relieve from the effects of the injury, the same to be provided by the employer, and in case of his neglect or refusal seasonably to do so, the employer to be liable for the reasonable expense incurred by or on behalf of the employee in providing the same: provided, that if the employee so requests, the employer shall tender him one change of physicians and shall nominate at least three additional practicing physicians competent to treat the particular case, or as many as may be available if three cannot reasonably be named, from whom the employee may choose: the employee shall also be entitled, in any serious case, upon request, to the services of a consulting physician to be provided by the employer: all of said treatment to be at the expense of the employer. If the employee so requests, the employer must procure certification by the commission or the commissioner of the competency for the particular case of the consulting or additional physicians; provided, further, that the foregoing provisions regarding a change of physicians shall not apply to those cases where the employer maintains, for his own employees, a hospital and hospital staff, the adequacy and competency of which have been approved by the commission. Nothing contained in this section shall be construed to limit the right of the employee to provide, in any case, at his own expense, a consulting physician or any attending physicians whom he may desire (my emphasis). The same general language as to responsibilities will now be found in L/C 4600(a); 4601 and 4605.
The reason this section is important is that Section 9(a) pre-dates L/C 4616, the Medical Provider Network statute. As such, any attempt to harmonize the rights of the employee to seek their own doctor at their own expense against the later enacted Medical Provider Network statute will have to give precedent to the later enacted labor code section. I therefore offer the following as one strategy to retain medical control under the Medical Provider Network while at the same time avoiding lengthy litigation over the admissibility of the employee's non-Medical Provider Network doctor's report.