Attacking Non-Medical Provider Network Treatment Billing and Liens

Where unauthorized treatment is obtained outside a validly established and properly noticed Medical Provider Network, reports from the non-Medical Provider Network doctors are inadmissible. Defendant is not liable for the cost of the non-Medical Provider Network reports.|

Elayne Valdez v. Warehouse Demo Services; Zurich North America, adjusted by ESIS, (2011 Cal. Wrk. Comp. LEXIS 55), April 20, 2011 Summary After treating in an established Medical Provider Network, applicant's counsel designated a non-Medical Provider Network treating physician who began to actively treat the applicant. After an issue over temporary disability benefits surfaced, applicant's attorney demanded benefits be provided based on the non-Medical Provider network reporting. At trial, the Workers' Compensation Judge deferred the non-Medical Provider Network treatment issue listed by the defendants on the Minutes of Hearing, indicating it was not related to temporary total disability. After the defense lost the temporary disability issue, they filed for Reconsideration, contending the non-Medical Provider Network reports were inadmissible, and, therefore, there was no substantial evidence to support the temporary disability award. Reconsideration was granted.1Issue #1 If an applicant has improperly obtained medical treatment outside of the employer's Medical Provider Network, are the reports of the non-Medical Provider Network treating physician admissible in evidence? Holding: No Issue #2 Is the inadmissibility of the non-Medical Provider Network reports applicable to the determination of both treatment and benefits? Holding: Yes (though this was a split decision) Where unauthorized treatment is obtained outside a validly established and properly noticed Medical Provider Network, reports from the non-Medical Provider Network doctors are inadmissible. Defendant is not liable for the cost of the non-Medical Provider Network reports. The Workers' Compensation Appeals Board has ruled non-Medical Provider Network physicians do not qualify as "treating physicians" pursuant to Labor Code Section 4600, nor as medical-legal evaluators under Labor Code Section 4061/4062. Pursuant to Labor Code Section 4616.6, such reports are not admissible on medical treatment issues. Since the reports are neither treating physician reports nor validly obtained medical legal reports, they are not admissible. "...Therefore, the non-Medical Provider Network physician is not authorized to be a Primary Treating Physician, and accordingly, is not authorized to report or render an opinion on 'medical issues necessary to determine the employee's eligibility for compensation' under section Section 4061.5 and AD Rule Section 9785(d) [Cal. Code Regs. Tit. 8, §9785(d)]. Moreover, for disputes involving temporary and/or permanent disability, neither an employee nor an employer is allowed to unilaterally seek a medical opinion to resolve the dispute, but must proceed under Section 4061 and Section 4062[1]. Accordingly, the non-Medical Provider Network reports are not admissible to determine an applicant's eligibility for compensation, e.g., temporary disability indemnity." What Will Applicant Attorneys Argue? The start of an applicant's argument over non-Medical Provider Network care will undoubtedly begin with Labor Code Section 4600. Labor Code Section 4600 states: "An employer 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'" [Labor Code Section 4600(a)]. Labor Code 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." Applicant's attorney will undoubtedly rely on the Knight decision, 71 Cal. Comp. Cases 1423, which states defendants' failure to provide the required notices to an employee of rights under the Medical Provider Network can render the employer liable for reasonable medical care. Note, these are also the two of the prime arguments used by lien claimants when demanding reimbursement for their liens! Despite these arguments, the Valdez court has opined that remedies are already available to the applicant, should there be a dispute over reasonable or necessary medical care. There is no need to self-procure or go outside the Medical Provider Network! Pursuant to Section 4616.3(c), where an injured worker "disputes either the diagnosis or treatment prescribed by the treating physician," he or she "may seek the opinion of another physician in the [Medical Provider Network]," and of "a third physician in the [Medical Provider Network]," if the diagnosis or treatment of the second physician is disputed. The Board further noted even after these remedies had been exhausted, the employee could request an independent medical review of the treatment recommendations as a 4th-level of dispute resolution, via the panel Qualified Medical Evaluator or Agreed Medical Evaluator process. After the initial medical evaluation arranged by the employer within the Medical Provider Network pursuant to section Section 4616.3(a), "[t]he employer shall notify the employee of his or her right to be treated by a physician of his or her choice," including "the method by which the list of participating providers may be accessed by the employee." [Labor. Code Section 4616.3(b); Cal. Code Regs., Tit. 8, §9767.6(d).] In addition, AD Rule Section 9767.6(e) (Cal. Code Regs., tit. 8, Section 9767.6(e)) provides that "[a]t any point in time after the initial evaluation with a Medical Provider Network physician, the covered employee may select a physician of his or her choice from within the Medical Provider Network." What about obtaining a separate consultation with a private treating physician at the expense of the applicant? The Workers' Compensation Appeals Board did consider whether the employee's right to obtain an evaluation under Labor Code Section 46052 with his or her own consulting physician rendered the reports admissible. That idea was rejected. Relying on the previously stated reasoning regarding admissibility of reports under Labor Code Sections 4616.6 and 4061/4062, the majority ruled use of Labor Code Section 4605 does not generate reports which meet the criterion of admissibility. The Workers' Compensation Appeals Board also opined that such reports were not only inadmissible but not the financial obligation of the defendant. Strategies for Addressing Reports, Liens, Payments of Indemnity Benefits If we assert that treatment is not valid, we need to provide evidence of submission of MPN notices and posting requirements, which is why it is imperative employers have employees sign documentation acknowledging receipt of the Medical Provider Network documentation.3 Employers should keep track of Medical Provider Network documentation in personnel files, and document how the information was distributed to each employee. Declarations regarding service of documents and proper posting of notices can be obtained from human resource contacts and safety supervisors. Administrative Director Regulation Section 10114.2 allows such declarations to be admitted into evidence where properly served before trial.4 The employee's deposition also provides an opportunity to document Medical Provider Network implementation. It will often be an excellent strategy to confront the employee with a picture of the employer's notices, which he might well remember once shown, as well as any copies of notices. Regardless of the resulting testimony, the defense may still be able to rebut assertions that notices were not properly provided. How many of us have walked into a break room or common area and not seen a posted notice? Hardly ever! In the event temporary total disability or temporary partial disability is demanded based on non-Medical Provider Network care, first establish that the Medical Provider Network is proper. If you are certain the Medical Provider Network is properly established and the information properly disseminated, issue a benefits denial notice arguing the non-Medical Provider Network care was improperly obtained, inadmissible, and, therefore, cannot support the claim for benefits. While you wait for the inevitable Declaration of Readiness to be filed, collect the information as discussed above. Liens If the court in Valdez determined that the defendant is not financially liable for treatment procured outside the Medical Provider Network or under Labor Code Section 4605, why should we pay for liens? Why should we not hold the applicant liable? Ultimately, the decision on liens will come down to negotiation and the desire to settle the claim, as well as the wishes of our clients. That being said, we can:
  • Agree to settle the claim if favorable and argue the liens are inadmissible at lien conferences and trials.
  • Put the employee/applicant attorney on notice that our clients will withhold sufficient sums from permanent disability to cover the lien claim. Failure to do so may expose our clients to the costs of the lien.
  • Not resolve the claim with the employer agreeing to hold the applicant harmless on liens.
Finally, see also Scudder v. Verizon California regarding admissibility of non-Medical Provider Network care. In that case, the Workers' Compensation Appeals Board determined applicant's pre-designated treating physician did not refer him to the doctors. Instead, applicant's attorney made the request for treatment to a physician (non-Medical Provider Network), who in turn made a referral to another non-Medical Provider Network for a surgical consultation. Always map out from where the referrals for care come!

1 The court assumed that The Medical Provider Network was validly established and that all proper notices regarding the Medical Provider Network were provided to the applicant.

2 4605. Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires.

3 For examples of half-page notices that can be provided to clients and to employers, please contact me.

4 The written affidavit or declaration of any witness may be offered and shall be received into evidence provided that (i) the witness was named in a witness list exchanged either through agreement of the parties or pursuant to an order issued under section 10113.5 (c), (ii) the statement is made by affidavit or by declaration under penalty of perjury, (iii) copies of the statement have been delivered to all opposing parties at least 20 days prior to the hearing, and (iv) no opposing party has, at least 10 days before the hearing, delivered to the proponent of the evidence a written demand that the witness be produced in person to testify at the hearing. The Hearing Officer shall disregard any portion of the statement received pursuant to this regulation that would be inadmissible if the witness were testifying in person, but the inclusion of inadmissible matter does not render the entire statement inadmissible.

Timothy Rose

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Timothy Rose

Timothy Rose is a Workers' Compensation Insurance Defense attorney with the Law Offices of <a href="">Bradford &amp; Barthel, LLP</a>. He earned his Juris Doctorate at the Thomas Jefferson School of Law in July of 2007. Prior to his work with Bradford &amp; Barthel, Timothy was a claims examiner with American International Group, Inc. and Insurance Company of the West, Inc.

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