Tag Archives: qualified medical evaluator

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.

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.

The Medical Provider Network Battle Continues: Life after Valdez

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.

The Court of Appeal identified a few of the types of non-Medical Provider Network reports which may be considered. They mention treating physician reports to the Agreed Medical Evaluator (AME) or Qualified Medical Evaluator (QME) under Labor Code § 4062.3(a). Self procured medical reporting under Labor Code § 4605 is permitted. A properly pre-designated treating physician prior to the start of a claim is another. Court ordered evaluations and independent medical examination reports may also be allowed. Treating physician reports obtained when the Medical Provider Network is not properly established, or notice under the Knight decision is not properly provided is another option. And, we have the AME/QME report process under Labor Code § 4061 and § 4062.

Again, these are all reports which were already known to be admissible. The trick is to identify which of these categories the non-Medical Provider Network care falls under. If the reporting does not fall under one of these categories, you should always consider litigation on the admissibility of the report(s).

It is important to remember that the original Valdez decision focused time and time again on the fact that the applicant left an established Medical Provider Network to obtain non-Medical Provider Network care. The court took issue with applicant attorney's attempt to circumvent the established program, only to argue later that the care was self-procured. In reality, the applicant simply began treatment outside of the Medical Provider Network.

The Workers' Compensation Appeals Board initially found that the medical care sought in that particular case was inadmissible because it strayed from within the Medical Provider Network. The Court of Appeal punted on the issue of proper notice to the applicant. As did the Workers' Compensation Appeals Board when deciding the original decision. Lip service to proper notification was provided, and it was “assumed” the notices to the applicant were proper.

If your goal is to defend non-Medical Provider Network care that is not self-procured, not ordered by the court and not part of the medical-legal process, then your Medical Provider Network house must be in order.

Always Follow The Knight Decision And Establish Your Medical Provider Network
The Workers' Compensation Appeals Board stated in their original opinion that “it is those applicants who have chosen to disregard a validly established and properly noticed MPN, despite the many options to change treating physicians and to challenge diagnosis or treatment determinations within the MPN, who have removed themselves from the benefits provided by the Labor Code.” Elayne Valdez v. Warehouse Demo Services, America 76 Cal. Comp. Cases 970, 980.

Employers are required to provide workers' compensation information to their employees. Their duty to provide notice of workers' compensation information begins prior to an injury. New employees are required to be provided with written information about the workers' compensation process and where and how to obtain medical treatment at the time of hire or before the end of the first pay period. Lab. Code § 3551; Cal. Code Regs., tit. 8, § 9880.

Other employees must be provided documentation prior to injury as well, including at the time of transfer into an existing Medical Provider Network, or at the time a new Medical Provider Network is created. The employer must also post the California State approved Notice of Information about the workers' compensation process and where and how to obtain medical treatment. Lab. Code § 3550; Cal. Code Regs., tit. 8, § § 9881 and 9881.1. If the employer fails to do so, the employee is permitted to treat with their personal physician. Lab. Code, § 3550(e).

Second, notice must be provided at the time of injury. Under Labor Code § 5401 and § 5402, within one working day of receiving notice of injury, the employer must provide the applicant with a claim form, information about benefits available to the applicant and the workers' compensation process. For additional reference, see California Code Regs., tit. 8, § § 9810 through 9812.

Additionally, the employer is required to give the applicant notice of information about use of the Medical Provider Network and provide them information on the right to be treated by a Medical Provider Network physician of choice after the first visit. They must also provide information on the Medical Provider Network and how to access it, and must also discuss the second and third opinion process.

Establishment and proper documentation of the Medical Provider Network is important. We frequently see challenges to documentation that was allegedly not provided to the applicant at the proper time. Or, claims that the documentation was incomplete, or in an improper language. The challenges will only increase due to extra scrutiny. Attorneys will challenge the Medical Provider Network paperwork as an attempt to treat outside of the Medical Provider Network. It becomes even more important for employers to work with carriers and Third Party Administrators to document when and how paperwork was provided.

I cannot stress enough the importance of adhering to these guidelines in order to mount a proper Medical Provider Network defense. This is the foundation which all additional layers of defense are built upon. While defects can be corrected (See the Helen B. Jakes panel decision and Babbitt v. Ow Jing (2007) 72 Cal.Comp.Cases 70 (Appeals Board en banc)), one should not make it a point to start to defend their position by cleaning up a mess.

Look At The Other Non-MPN Treatment Options
Fortunately, most of the remaining options for non-Medical Provider Network care are simple to review and digest. An independent medical examination, or other discovery ordered by the Court is just that, a court order. As long as the decision is sound and rational, the discovery will likely move forward.

The § 4061/4062 process is another large animal that has many facets and issues. This does not need to be addressed in detail, except to make mention that the request for a Qualified Medical Evaluator must be made after a valid Agreed Medical Evaluator offer is rejected or not responded to. The timeframes under Messele must be adhered to. Replacement panels must comply with the code of regulations. The strike process and applicable guidelines must be followed.

Information presented to the Agreed Medical Evaluator or Qualified Medical Evaluator is an area that will bring about litigation as a result of this decision. If a Medical Provider Network was not properly established, treatment can commence until the issue is resolved (see above). And, we have instances where the Medical Provider Network cannot be enforced due to limitations in the number of physicians or specialties in a geographic region.

Argue Against The Claim Of “All Relevant Medical Evidence” Being Admissible
The Court of Appeal spent a decent amount of time addressing Labor Code § 4062.3(a) and the language “any party may provide to the qualified medical evaluator selected from a panel any of the following information: (1) Records prepared or maintained by the employees treating physician or physicians (2) Medical and nonmedical records relevant to determination of the medical issue”.

If non-Medical Provider Network reports are to be submitted in this manner, then we must first clarify how they are being submitted and what category they fall under. One option for applicants is to argue Labor Code § 4600 and treatment “that is reasonably required to cure or relieve the injured worker from the effects of his or her injury.” Which, they claim includes non-Medical Provider Network treatment reports.

The Court of Appeal focused quite a bit on legislative intent and the use of particular wording in prior decisions. We can now apply the same method of thinking. The Court of Appeal may have clarified the use of non-Medical Provider Network care, but they did not do two things. First, they did not do away with Medical Provider Networks, or their relevance. They did not say a Medical Provider Network could not be enforced and benefits made contingent on compliance within it. Second, they did not provide for non-Medical Provider Network reports to be admissible aside from the options listed above.

As an added bonus, I included some other non-Medical Provider Network options for reference. Contrary to the opinion of a growing number of applicant attorneys, the 5/29/12 decision did not say that any non-Medical Provider Network treatment was permitted. It simply clarified what non-Medical Provider Network treatment is permitted.

Labor Code § 4605 And Self-Procured Medical Treatment
In the limited time since 5/29/12, and even prior to this decision, I have seen this as the most contentious and likely litigated issue. As my esteemed colleague Mr. Peabody so eloquently stated, there will be a thin line between the interpretation of what is “self-procured” and lien claimants who risk not being paid.

In the case I am presently litigating, this is an important distinction. Labor Code § 4605 specifically mentions care provided at the applicant's own expense will be permitted. The applicant was treating with a non-Medical Provider Network provider despite being provided with proper documentation and compliance under the Knight decision. They started their claim with treatment in the Medical Provider Network. Our Medical Provider Network will stand up under scrutiny.

When I filed for a conference to address the non-Medical Provider Network care, applicant's counsel produced a miraculous Permanent & Stationary report just prior to the conference. His new argument was that the matter was now moot and we could proceed with settlement or review by the Qualified Medical Evaluator given our objection to the report.

Not so fast. I argued that if we are to go to a Qualified Medical Evaluator, I did not believe the reporting of the non-Medical Provider Network should be reviewed. He argued the care was self-procured and alternatively, it was a lien issue. This is a complete contradiction. How can treatment be paid for by his client, yet there is also a demand that we pay?

When I asked for something in writing to confirm that the lien would be withdrawn as the applicant would assume financial responsibility for the “self procured” medical care, applicant's attorney would not agree to this.

At our hearing, the Judge was hesitant to set the matter for further litigation as well. My argument remained the same the payment of the services and person responsible for the same must be resolved prior to further discovery or settlement. If the medical reporting truly is self-procured, then the reports are admissible and we can continue. If the treatment was provided on a lien basis, then I have a Medical Provider Network argument to address, and I wanted a judge to rule on whether or not we are responsible for payment, or if the reports were admissible. The matter cannot be deferred until after settlement as a medical-legal evaluator may comment on them. And if I consider any of the disputed reporting for settlement, then I give merit to the charges and open my client to exposure.

To clarify, we must distinguish between treatment resulting in a lien and self procured care. Treatment that results in a lien includes a demand that the defendant pay for the medical care.

The medical provider is arguing that the care is reasonable, necessary and proper. They have a dispute with the complete lack of payment or approval, or a partial denial of payment or approval. At the conclusion of the claim, they expect the Defendant to come out of pocket to resolve their billing dispute.

Self-procured care is quite different. Labor Code § 4605 specifically mentions the cost of the self procured care is to be the responsibility of the applicant, not the defendant. There is also a difference between “self-procured” care and “free choice” in treatment.

If the Medical Provider Network in question is properly established and noticed, the employer retains significant medical control. Changes of treating physicians within the Medical Provider Network and second or third opinions are the options the applicant has to exercise their “free choice” within the Medical Provider Network itself.

Contrary to the narrow interpretation of Labor Code § 4903(b), medical expenses incurred under the Labor Code § 4600 series should not include § 4605 specifically. Why? The right to reimbursement for self-procured medical expense arises only when the employer has neglected or refused to exercise their duty to provide medical treatment. This generally occurs in an outright claim denial. The Medical Provider Network treatment they are offering and providing is satisfying their obligation to provide medical care. Referring to the original Valdez decision, recall that the employer provided multiple options to the applicant within their Medical Provider Network. The applicant ignored the offer.

So What Can Defendants Do?
Multiple steps to a proper defense have been addressed above. Further recommendations are as follows:

  • Never be afraid to litigate an issue in which you believe you are correct, and in which you have solid case law and the Labor Code on your side. Despite various interpretations, I do not see the most recent decision by the Court of Appeal discarding Medical Provider Networks. They remain a powerful and effective tool defendants should use.
  • As a practice tip, the Workers' Compensation Appeals Board can take judicial notice of the Medical Provider Networks listed on the State web site of participating programs.
  • Involve the employer in the process. Make sure they provide proper documentation of their attempts to provide the proper paperwork in compliance with Knight. Simply having someone testify as to the proper procedure is not always sufficient. Maintaining written documentation in a personnel file is always best.
  • Keep quality claims file documentation. I always recommend sending important documents, even “form” documents with a proof of service to verify the document and any attachments included were actually sent.
  • Fix Medical Provider Network defects as seen in the Jakes and Babbit decisions. Be aware of any claims for “chronic” conditions during this process, as it could affect your ability to return the applicant to the Medical Provider Network.
  • Make sure your defense attorney is aggressive and researches the issues thoroughly.
  • Attempt to compromise if there is some error in the notification process or Medical Provider Network specialists are not available in the region of the applicant.
  • If the applicant insists the care is self-procured, then obtain this in writing before you agree to send any documentation for review by a medical provider or settle the claim.
  • If possible, try to get the lien withdrawn.
  • If you have a properly established Medical Provider Network and applicants refuse to use it, make the liens their problem — not yours. Go to trial on the issue of whether non-network treatment is truly “at the applicant's own expense.”
  • If the reports are sent for review without consent, argue the admissibility of not only the non-Medical Provider Network reporting, but also of any further report that is tainted.

Valdez may be remanded at this point, but it is not dead. And the core issues presented in the original case still stand strong. Use them to your advantage.

With special thanks to Michael D. Peabody, Esq.