Tag Archives: qme

Blockbuster Opinion on Apportionment

The Court of Appeals in the 3rd District has issued a blockbuster opinion on apportionment in City of Jackson v W.C.A.B. (Rice) regarding the requirements for substantial medical evidence in worker’ compensation cases. In reversing the W.C.A.B., the court laid out its analysis of why a QME’s apportionment to genetic factors was well supported and legally sufficient.

The applicant in this case was a 29-year-old, police officer who developed cervical spine pain, resulting in the need for surgery. He was evaluated by QME Sloan Blair MD on multiple occasions. Dr. Blair apportioned applicant’s disability to multiple factors, including 17% each to his employment with the city, to prior employment and to personal activities. The remaining 49% was apportioned to his personal history, including “genetic issues.” In response to a request for supplemental report from the applicant attorney, Dr. Blair further clarified the basis for her opinion:

“…“to a reasonable degree of medical probability that genetics has played a role in Mr. Rice’s injury,” despite the fact that there is no way to test for genetic factors. Citing the referenced medical studies, Dr. Blair stated that one of them said “heritability was . . . 73 percent in the cervical spine. . . . [S]moking, age, and work are only a small percentage of disc disease and most of it is familial.” Another source cited the role of heritability in disc degeneration as 75 percent, and the other stated it was 73 percent. Dr. Blair cited a fourth article that claimed, “ ‘[t]win studies demonstrate that degeneration in adults may be explained up to 75 percent by genes alone.’ ” The same study found environmental factors to contribute little or not at all. Dr. Blair stated that while these studies supported an apportionment of 75 percent to personal history, she decided to err on the side of the patient in case there was some unknown “inherent weakness” in the study, and decided that 49 percent was the “lowest level that could reasonably be stated…”

The WCJ accepted Dr. Blair’s apportionment to genetic factors but rejected the other apportionment awarding PD based on 51% industrial causation. On reconsideration, the W.C.A.B. reversed, asserting Dr. Blair’s apportionment to genetic factors resulted in an allocation of disability to impermissible immutable factors and not to “specific identifiable factors” and was therefore not substantial evidence.

See also: 3rd District Upholds Validity of IMR  

The 3rd District took issue with the W.C.A.B.’s entire analysis of this apportionment issue. Noting the specific intent of SB 899 to allow apportionment to “other factors,” the court went through multiple W.C.A.B. and appellate court decisions on apportionment and could find little to distinguish apportionment on the basis of degenerative joint disease, asymptomatic prior conditions etc. The court specifically rejected the W.C.A.B.’s reference to “impermissible immutable factors,”  commenting as follows:

“…Precluding apportionment based on “impermissible immutable factors” would preclude apportionment based on the very factors that the legislation now permits, i.e., apportionment based on pathology and asymptomatic prior conditions for which the worker has an inherited predisposition. 

The Court pointed to several instances where medical evidence relied on apportionment to genetic dispositions to develop medical conditions, citing the Kos v W.C.A.B., Escobedo and Acme Steel cases and further noting:

“…We perceive no relevant distinction between allowing apportionment based on a preexisting congenital or pathological condition and allowing apportionment based on a preexisting degenerative condition caused by heredity or genetics.”

The court also rejected the W.C.A.B.’s analysis that Dr. Blair’s reliance on the applicant’s genetic makeup resulted in apportionment to the causation of injury rather than the causation of disability. The court pointed out the cause of the injury was repetitive motion, not genetics. Rather, Dr. Blair commented that the applicant’s disability was caused by a combination of factors, including a significant contribution from his genetic makeup..

The court was also not put off by the QME’s reliance on medical literature to support her conclusion rather than on a specific history from the applicant of his genetic makeup or background. As noted by the court, the doctor’s conclusion was supported by significant, unrebutted medical literature that found degenerative disc disease was influenced significantly by genetic factors and only minimally to environmental factors such as work activity. The court points out that the research relied upon by Dr. Blair supported the conclusion that as much as 75% of all DDD was related to genetics, and the issue was not whether one could prove that the genetic factor existed; the existence of significant DDD established the genetic factor as present.

“Dr. Blair’s reports meet all of the requirements of Escobedo. Dr. Blair expressly stated that confidence in her opinion was predicated on reasonable degree of medical probability. Dr. Blair gave the reasoning behind her opinion–the published medical studies–and even named the studies and the pages relied upon. Her opinion disclosed familiarity with the concept of apportionment. Labor Code section 4663 states that apportionment is based on causation, and that “[a] physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage of the permanent disability was caused by other factors . . . .”  (Lab. Code, § 4663, subd. (c).)”

The case was remanded to the W.C.A.B. to issue an opinion based upon the QME’s conclusions.

Comments and Conclusions:

Assuming this decision holds up — it is certainly likely to be appealed further — it dramatically reinforces the rules on apportionment to any relevant factors that a physician can identify with reasonable medical probability.

There are some unusual circumstances in this case that may have played a role in the ultimate outcome. First, the applicant was relatively young to have significant DDD, only 29 years old. That fact probably tipped Dr. Blair off that there was something about the condition that could not be attributed to environmental factors, including work. Second, the length of employment as a peace office was not lengthy; the applicant had worked less than five years in a full-time capacity. There had not been a lot of time to attribute causation to work activity.

There is also fairly strong support in the medical literature that DDD is not really activity-related. Other than studies that suggest whole body vibration is a significant factor, there is little to suggest that bending, lifting and stooping, without significant trauma, plays any role in the development of disc disease.

The situation is much like carpal tunnel syndrome, where the medical literature overwhelming fails to demonstrate a relationship between computer usage and the disease process, and yet we still routinely get compensable reports without any real support in the medical literature. Spine pain is constantly related to even relatively benign work activities as a matter of course.

Clearly, defense attorneys need to start appearing at doctor depos armed with the literature cited by Dr. Blair and challenge physicians to provide a basis for their unapportioned or minimally apportionment spine CT claims, especially in younger individuals.

See also: Intelligent WC Medical Management  

This decision may have even broader applications in non-orthopedic cases. We have a wealth of literature about causation of various internal medicine conditions and even psychiatric conditions attributable to genetic, historical and environmental factors that now can more carefully be considered to support apportionment where previously the W.C.A.B. had been rejecting such opinions. The issue of whether there can be apportionment to genetic factors or predispositions would appear to be resolved in the affirmative in this case.

Next Tsunami of Work Comp Payments

2009 was a milestone in workers’ comp. In that year, the Centers for Medicare and Medicaid Services (CMS) formally announced that it would review future prescription drug treatment in Workers’ Compensation Medicare Set-Aside (WCMSA) proposals based on “appropriate medical treatment as defined by the treating physician.” While the U.S. culture and Centers for Disease Control and Prevention (CDC) had already noticed the prescription drug epidemic, this new requirement more clearly highlighted high-cost drug regimens that were doing more clinical harm than good.

Yes, the monthly drug costs were already known to be expensive. Yes, reserves often had to be raised annually. But until the workers’ comp industry had to follow explicit rules to calculate the lifetime cost associated with continued inappropriate polypharmacy regimens, the problems hadn’t really registered.

The new requirement dramatically changed the ability to settle and close a claim, so addressing the overuse and misuse of prescription drugs, primarily related to non-malignant chronic pain, became a white hot priority. The financial exposure highlighted by the WCMSA was a tsunami that changed the contours of the claims shoreline.

Well, another milestone has been achieved for workers’ comp. I have been talking about it, as well, over the past three years, because I could see the riptide indicators of the next tsunami to hit. And now the surge is about to hit the shore.

This next workers’ comp tsunami? Death benefits that will be paid because of drug overdoses.

This has already been affirmed in a handful of states, among them Pennsylvania (James Heffernan), Tennessee (Charles Kilburn) and Washington (Brian Shirley). Death benefits have been denied in other states, including Connecticut (Anthony Sapko) and Ohio (John Parker). I’m sure this is not a complete list. The list shows how individual circumstances and jurisdictional rules can drive different decisions, but what is not up for debate is whether payers face an issue concerning injured workers dying from an overdose (intentional or unintentional) of prescription drugs paid for by workers’ comp.

The game-changer could be a new decision in California, South Coast Framing v. WCAB. The full Supreme Court decision can be found here, and a good article that gives additional context can be found on WorkCompCentral (requires a subscription).

To summarize, Brandon Clark died on July 20, 2009. The autopsy reported his death “is best attributed to the combined toxic effects of the four sedating drugs detected in his blood with associated early pneumonia.” Elavil, Neurontin and Vicodin were being prescribed by his workers’ comp physician, while Xanax and Ambien were prescribed by his personal doctor. Of that list, the four sedating drugs are Elavil, Vicodin, Xanax and Ambien — obviously a mixture of workers’ comp and “personal” drugs.

The qualified medical evaluator (QME) doctor ascribed the overdose to the additive effect of Xanax and Ambien and not the workers’ comp drugs. However, he allowed that Elavil and Vicodin could have contributed (the deposition quotes on pages three and four remind me of a Monty Python skit, as he tried inartfully to not provide apportionment). So … what is the strength of causality between the industrial injury and death? Tort is much more precise in its understanding — cause, in fact, and proximate cause. Workers’ comp (which is no-fault) is not tort, and neither is its definition of causality — contributing cause of the injury.

Did Clark misuse or overuse the drugs through willful misconduct? Possibly. Should one of his physicians have recognized the additive sedative effects from the combination of drugs and done something different? Probably. Was Clark trying to address continued legitimate pain that originated with his workplace injury? Likely. Is this a tragedy? Definitely.

So the decision came down to whether the workers’ comp drugs (Elavil and Vicodin) could have been part of why Clark died.

The Court of Appeal concluded that Elavil only “played a role” and was not a “significant” or “material factor.” The Supreme Court found the evidence to be substantial that Elavil and Vicodin, to some degree, contributed to his death. Therefore, they awarded death benefits to Clark’s wife and three children.

What does this mean? At least in California, it means that the bar of establishing causality (did workers’ comp drugs somehow contribute) is not as high as you might have expected. There is no further debate because this is a Supreme Court decision. Does that mean more death benefits are to come in California? In a highly litigious state where representation is commonplace. And prescription drug use for chronic pain is an overwhelming problem. Hmmm …. My “magic eight ball” is in for maintenance, but my educated guess (I am not an attorney) would be yes.

What about other states? Well, every state has different rules and case history, but because trends often start in California, and the Supreme Court was articulate in its decision-making process, it’s possible this causes a re-examination by all parties. The fact that some states already have established case law to grant death benefits could be a compounding effect. Therefore, it’s a definite maybe.

This may be an isolated case that has no repercussions in California or elsewhere. On the other hand … Consider this your RED FLAG warning for the riptide that precedes the tsunami. And you thought paying for drugs was expensive!

Spinal Surgery Requests And The SB 863 Gap

In an attempt to simplify the ever-confusing Workers’ Compensation world in the great State of California, our legislative branch drafted SB 863 in 2012. With the stroke of his pen, Governor Brown enacted sweeping legislation, with effective and varying start dates for various provisions of the new law. However, with varying start dates comes confusion regarding various provisions. A spinal surgery request is one of the areas which appears to have a problem with the implementation date of July 1, 2013.

Effective January 1, 2013, provisions under Labor Code § 4062(b) pertaining to the spinal surgery second opinion process have been eliminated from the Labor Code. Overall, this is a positive result for the Defendant from SB 863. The new independent medical review (IMR) process kicks in on July 1, 2013, for dates of injury prior to January 1, 2013. However, a new question has surfaced as a result of this substantial change. How do we address spinal surgery requests for dates of injury prior to January 1, 2013?

The new regulations and the Labor Code conflict in their guidance. Labor Code § 4062 (b) reads: “For injuries on or after 1/1/2013 and for UR decisions communicated on or after 7/1/2013, regardless of date of injury, all employee objections to utilization review disputes under Lab Code § 4610 are resolved only IMR pursuant to 4610.5 and not through the QME process.” Simple enough. Yet with the provisions of Labor Code § 4610.5 regarding the IMR process not starting until July 1, 2013, we have a sizeable gap of six months where the parties are seemingly unable to participate in a second opinion process as well as the independent medical review process.

Causing even more confusion is the second half of Labor Code § 4062(b) which reads: “For injuries on or after 1/1/2013 and for objections to diagnosis of treatment recommendations within the MPN, regardless of the date of injury, all employee objections to diagnosis or treatment recommendations within the MPN are also resolved only through independent medical review pursuant to § 4610.5.”

Curiously, this seems to imply that the independent medical review process is the method which should be used, since a request for spinal surgery is clearly a request for care. Further, the process is to be implemented “regardless of the date of injury.” That being said, we must note that the objections must come from care within the medical provider network (if applicable). Further, it appears that this section refers only to “employee” (not employer) objections.

So what is the correct answer? In my research, I consulted with numerous publications. I also consulted with fellow colleagues. All presented varying answers. Ultimately, I found the answer in Labor Code § 4610(g)(3) which provides:
“(3) (A) Decisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision. Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director. If the request is not approved in full, disputes shall be resolved in accordance with Section 4610.5, if applicable, or otherwise in accordance with Section 4062.”

As Labor Code § 4610.5 is not applicable until July 1, 2013, Labor Code § 4062 will apply and the medical-legal process takes over. Which means the Defendant would adhere to the requirements under the guidelines established under the utilization review process when we are faced with a spinal surgery request.

Upon receipt of the request, they must proceed with a timely and proper review and furthermore must properly convey the denial for care as indicated above. It is important to remember that the Defendant must notify the “employee” by a copy to the employee and their attorney. In their notice to the physician, the correct, identified physician must be served as indicated above. Finally, it is my recommendation that with any utilization review determination, a proof of service should accompany the final, written decision. Although this step may be seen as a small one and potentially burdensome, a proof of service signed under penalty of perjury usually eliminates a claim of late or improper service, and can be a very valuable tool at the time of a hearing.

Assuming the utilization review process was completed properly and a denial issued, the parties would then proceed with a medical-legal evaluation under Labor Code § 4062 to resolve the dispute.

Come July 1, 2013, many areas of Workers’ Compensation that have these sorts of “gap” problems will simply go away. And the parties will fully participate in the independent medical review process on all claims. Until that time, however, we must continue to infer what the legislature intended, and litigate items such as this, if necessary.

*Special thanks to Jake Jacobsmeyer.

New Laws … New Responsibilities … New Opportunities

SB 863 was signed by California’s Governor back in October but with an official start date of January 1, 2013. For that reason and just because I don’t trust either the legislature or the courts to change their minds, I thought I would wait until now to start talking about what is good, what is bad and what is downright ugly.

Let’s Start With A Good…
In 1917, the first Industrial Accident and Safety Act went into effect. There were lots of pieces, but one that has endured the test of time is the one that allows an injured employee to choose to be treated by his own consulting or attending physician, at the employee’s own expense. The current version of that section is now Labor Code Section 4605 (until 1/1/2013). In my mind, it has been used, or should I say abused, over the past years with an ongoing controversy over this section and what it really means.

There are two major issues surrounding this section of the code. The first has been the question of who is really responsible to pay the bill. The second is whether or not the non-Medical Provider Network doctors’ reports are admissible in court. Well, thanks to an energetic applicants’ attorney (A/A) named Mendoza, both of these issues became ripe for the courts with the recent 2012 Valdez case.

First, I must note that there was a viable Medical Provider Network in place at the time of the injury. The employee initially went to the carrier’s Medical Provider Network doctor, but he also self-procured his own, non-Medical Provider Network doctor.

The carrier objected on the basis that the Medical Provider Network controlled all medical treatment. However, the trial judge admitted and relied totally on the report of the self-procured, non-Medical Provider Network doctor in making his decision as to compensability and the amount that would be due the injured employee. This matter was then taken up by the Workers’ Compensation Appeals Board who reversed the trial judge not once but twice.

However, Mr. Valdez’ attorney was not letting go so easily. So the matter was then taken up by the Court of Appeals who agreed with the Workers’ Compensation Appeals Board. Mr. Mendoza was still not satisfied and took the matter to the California Supreme Court for consideration. The matter has been accepted by the Supreme Court and we await their decision which I predict will be in our favor.

However, while all of this was going on in the courts, the legislature was in the process of passing SB 863, which has some interesting changes … one of which is directly related to this issue. To put it in perspective, you must understand the current language of 4605 which reads as follows:

L/C 4605 — Consulting or attending physicians provided at employee’s expense. Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense to a consulting or attending physicians whom he desires.

As noted above, one of the problems has been who has been paying the non-Medical Provider Network doctors’ fees. Up to this point in time, the applicant’s attorneys have been burying these costs when they send the injured employees to their doctors. The doctors are instructed to treat and to then file a lien for their fees which are normally dealt with at the time the claim itself is decided. I am sorry to say, that in the end, the carriers have rolled over and have been picking up these costs without a fight. This, even when there is a valid Medical Provider Network in place and all such services by the non-Medical Provider Network doctor should be objected to and paid for by either the injured employee or better yet, his attorney.

Non-Medical Provider Network Doctors’ Reports
The next issue is the admissibility of the non-Medical Provider Network doctor’s report. The argument has been that since the employee is paying for it, it should be allowed to have weight in the final determination of the claim. Needless to say, we have vigorously objected and in many cases have won. However, the issue was still there until the legislature made a significant change to L/C 4605 which clarified whether these reports could or should be admitted. L/C 4605 has been changed to read as follows effective 1/1/2013:

Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians who he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis for an award of compensation. A qualified medical evaluator (QME) or authorized treating physician (read MPN Primary Treating Physician — PTP) shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report and shall identify the bases for this opinion.

So you can see that the legislature has spoken and the issue of the admissibility of the reports has been addressed and settled. That is why I feel we will win at the Supreme Court as the legislature has already made the necessary changes to make clear their intent with the law.

So You Ask, “How Does All This Affect Me?”
Effective January 1, 2013, when you have a strong Medical Provider Network in place, the “consulting or attending physician’s” reports will be admissible but will be sent only to the Medical Provider Network’s Primary Treating Physician. That doctor will either accept what the non-Medical Provider Network doctor has stated or reject it. If our doctor rejects it, he/she must justify why they disagree with what the report says. And of greater import is that if they reject it, there is now a dispute over the diagnosis and treatment of the injury and the matter will be sent out for a second opinion by our Medical Provider Network doctor and not the non-Medical Provider Network one chosen by the injured employee.

This approach will save both time and a great deal of money by shortening how long it takes to get an acceptable medical opinion. This will allow the claim to be moved forward and closed in a timely manner and at a much reduced cost.

What Your Injured Employee Needs To Know When Reporting An Injury
The most important thing to remember here is that when an injury occurs to one of your employees, you need to make sure that they know and understand their right to secure outside treatment but at their own expense. This has already had the affect of limiting applicant attorneys from sending their clients out to doctors who list every possible body part available and then treat and treat and treat and treat.

SB 863 Valdez Revisited

As you may already know, 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 was initially an unpublished decision. However, plaintiff’s counsel petitioned the court which did in fact publish the opinion giving it precedential status. In other words, it could be cited in other cases with the same or similar issues.

In its simplest terms, it says in part that an injured employee may be treated by his/her own non-Medical Provider Network physician pursuant to Labor Code (L/C) 4605 for diagnosis, treatment and attendant reports. The case goes on to acknowledge that the employee is responsible for the payment of these services and that any reports generated by the non-Medical Provider Network doctor are admissible. However, the case was remanded to the trial court to deal with the admissibility as well as other issues left unsettled by the Workers’ Compensation Judge at the time of trial.

However, as you will see below, I am pleased to report that the defense strategy we developed allowing employers to use the current Medical Provider Network system to its fullest advantage was adopted by the Legislature in the recently passed SB 863. This was due to the amendment to Labor Code 4605 as discussed below.

Background
The current Labor Code 4605 was first enacted in 1917 as a part of the then Insurance and Safety Act. Sec. 9(a) of that act is most interesting from a historical perspective 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 is now found in L/C 4600(a); 4601 and 4605.

The reason this section is important is that Section 9(a) pre-dates Labor Code 4616, the Medical Provider Network statute. As such, any attempt prior to SB 863 to harmonize the rights of the employee to seek their own doctor at their own expense against the later-enacted Medical Provider Network statute would have to give precedent to the later-enacted labor code section (L/C 4616).

Labor Code 4605 Amended By SB 863
However, all of that was changed with SB 863 which amends Labor Code 4605 in such a way that makes clear the admissibility and subsequent value of any non-Medical Provider Network generated reports:

“Section 4605 of the Labor Code is amended to read:

4605. Nothing contained in this chapter shall limit the right of the employee to provide, at his or her own expense, a consulting physician or attending physicians whom he or she desires. Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator (QME) or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.”

Strategy For The Use Of Labor Code 4605 And Medical Provider Networks Going Forward
Employers and their claims administrators (carrier or Third Party Administrator) must aggressively assert and maintain their medical control over any new claim reported under their Medical Provider Network to make this strategy work.

First, employers need to be sure that the required Medical Provider Network notice to each employee and the Labor Code required general postings are complete and well documented.

It is important to note that SB 863 also made significant changes to 4616, the Medical Provider Network statute. However, even with these changes, an employer’s best defense will continue to be quality documentation regarding policies and procedures on their handling of the Medical Provider Network notification and enforcement process which will block applicant attorneys’ (A/A) attempt to seize medical control for failure to comply with the statute.

Consulting And Attending Physicians
The important question raised by Valdez dealing with the use of Labor Code 4605 by applicant attorneys as a means to get their non-Medical Provider Network doctors reports admitted has been resolved. Labor Code 4605, as amended, has clarified clearly and concisely to who and how the non-Medical Provider Network doctor(s) reports are to be submitted and used.

As noted above, “A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she (my emphasis) agrees or disagrees with the findings or opinions…” You will note that only a qualified medical evaluator in a non-Medical Provider Network claims environment or the “authorized treating physician” which in the case of a Medical Provider Network is the Primary Treating Physician (PTP) have control over the use of such pro-offered reports.

Recommended Procedure Under Labor Code 4605 As Amended

  1. As a first step, I recommend that the injured employee be informed, as part of the employer’s or claims professional’s acknowledgment of the claim, that a valid Medical Provider Network is in place and that the employee’s cooperation is expected.
  2. The same initial notice should also state “that the employee is free under Labor Code 4605 to seek their own consulting or attending physician, at their own expense.” They will be told at that time that if they do avail themselves of this option under Labor Code 4605, their consulting or attending physician’s medical reports will be tendered to the Primary Treating Physician (PTP) for this injury who, under the Medical Provider Network statute, is the controlling doctor (Labor Code 4061.5). Under this scenario, the consulting or attending physician’s report will be submitted to either the qualified medical evaluator or Primary Treating Physician to be used as he/she deems appropriate.
  3. At the same time, the normal Medical Provider Network process will be enforced as is current policy. Demand will be made that the employee continues to be seen for diagnosis and treatment by a Medical Provider Network doctor. If there is a dispute as to diagnosis or treatment by either the applicant’s attorney or the L/C 4605-obtained consulting report, that dispute will be handled under the Medical Provider Network’s 2nd, 3rd and if necessary, the Independent Medical Review process and NOT through a Panel Qualified Medical Evaluator.
  4. We will also be requesting from the employee an acknowledgement, under penalty of perjury that the employee has already paid or understands that he/she is the ultimate responsible party for paying their L/C 4605-obtained physicians as well as any other related bills for treatment, testing and other costs.
  5. We will object to any liens from the consulting physician and will recommend they bill the injured employee directly.
  6. Should the employee continue to refuse to be seen by our Medical Provider Network doctors and treat with the non-Medical Provider Network physician, then a Notice of Suspension of Benefits will be sent to the injured employee, his attorney (if there is one), and the non-treating physician. The notice will inform all of the above that all benefits including both Temporary Total Disability and medical treatment are suspended under Labor Code 4053 for failure to comply with a written demand. It will go on to say that the suspension can be lifted by the injured employee simply showing up at our Medical Provider Network doctor for diagnosis and if necessary, treatment.
  7. Under this scenario, employers and their carriers or Third Party Administrators will be able to use the full weight of the Medical Provider Network process while, at the same time, dealing with non-Medical Provider Network procured medical diagnosis and treatment. This will help keep the employee within the Medical Provider Network and, if handled in a swift and judicious manner, help hasten a timely closure of the claim.