On Setting Up an Medical Provider Network (an Attorney’s Perspective)

Mark Walls, manager of the Work Comp Analysis Group on LinkedIn, has an interesting article out about the pros and cons of medical provider networks.  The MPN is a subject oft-touched on by your humble blogger, and generally in a fairly approving tone, as it can be a very effective tool to cut costs.  However, as Mr. Walls points out, there are dangers to a creeping increase in costs.

Often the story begins with a pitch.  A slick, sharply dressed salesman or woman from an MPN will make a presentation about all the money that can be saved by switching to his or her MPN.  The doctors are great, efficient, and honest – they will not let sympathy or prejudice influence their medical opinions.  The MPN cuts costs like a civil war surgeon, hacking and slashing.  And how is this possible, the pitch continues… because the volume of “patients” allows less to be charged for each visit, treatment, etc.  So everybody wins!  The employee gets fast, effective treatment and the insurance company or self-insured employer gets a smaller bill.

But there are other costs that need to be weighed.  Mr. Walls points out that some MPNs tend to increase the frequency of visits, trying to make their money back in a different type of volume of business.  But there is another, larger cost as well.  Litigation.

As pointed on this blog again and again, the MPN must be done right, or not at all.  If the MPN is not properly set up and properly defended, then the applicant will run up a medical bill outside of the network and the defense will be end up writing larger and larger checks.  The MPN must include enough treating physicians of every type in every area an employee is likely to be (this includes chiropractors, unfortunately.)

The MPN must also have proper notices to the employee – multiple languages, regular updates, notice at hiring, injury, etc.  If your MPN salesman doesn’t know these rules or can’t detail how the MPN will provide these services, then perhaps more investigation is necessary.

Here is a suggestion – whether you have in-house workers’ compensation counsel, a panel of defense attorneys to pick from, or an outside firm that handles all your workers’ compensation matters, pick a veteran attorney who knows MPNs through and through, and have him or her sit in on the sales pitch, taking notes and asking questions.  After all, the odds are high that two years down the line, this lawyer will be fighting off non-MPN lien claimants or driving back the applicant’s attorney insisting that a shoulder surgeon in Washington is reasonable for an employee living in San Francisco.

Time and again, the lien claimants and the applicant’s attorney have tried to knock the MPN wall down, and with a few exceptions, it stands still (at least in California).  I would say it’s absolutely worth having an MPN if you can have one set up, I would just suggest having a workers’ compensation defense attorney you trust help from the start.

Another Pro-Medical Provider Network Panel Decision

California’s Medical Provider Network is regularly the subject of both applicant attorneys’ and lien claimants’ raids.  But, just as walls well guarded do not fall, the MPN still has some stiffness in it left.

The recent panel opinion of Breanna Clifton v. Sears Holding Corporation shows the Workers’ Compensation Appeals Board’s resistance to applicant’s efforts to overwhelm the defense with burden after burden of proof.

Applicant self-procured treatment outside of defendant’s MPN, claiming she was entitled to temporary disability payments and reimbursement for treatment based on the opinion of this out-of-network chiropractor.

Defendant pointed out that the report was inadmissible and the claim for reimbursement barred in accordance with Valdez.  Applicant responded by claiming that defendant had not proven that the MPN was valid.

Defendant filed for reconsideration following the workers’ compensation judge’s award of everything under the sun to applicant.  In an act of moderation, the WCJ declined to order the executives of Sears Company to personally apologize to applicant in the form of a choreographed dance and song routine for daring to invoke a defense.  (Some day…)

Although the defense did not contest the finding of injury, it did object to the admission of the reports and the reimbursement for treatment expenses.

The panel held that “a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPNs on the [Administrative Director’s] Web site, and by offering unrebutted evidence that it provided the required notices.”

Lien claimants have threatened to demand I prove every element and procedural requirement necessary for a valid MPN – now, the AD’s website is all the proof any attorney needs.

But what do you do when the applicant claims the notices were never provided?  Or, perhaps, after X years with his or her employer, the applicant suddenly doesn’t understand English?  The injury, you see, limited the applicant to his or he native tongue.

This can happen, of course, and the deposition will likely tip you off.  But be prepared with affidavits, witnesses, etc. – perhaps even a note in the employment file that applicant also speaks another language, so that the Medical Provider Network administrator can provide notices in English and the other language as well.

In any case, the MPN is a great wall against bad reports and inflated billing – when applicants and lien claimants try to push it down, don’t be afraid to push back!

Medical Treatment Starting When? Objection!

In a continuing effort to make your life easier, an applicant’s attorney is claiming that a treating physician’s recommendation of medical treatment, in this case in-home care, dates back to the date of injury, five years ago!

What are you to do?

Well, in a turn that has left your somewhat-less-now-than-before cynical blogger a bit surprised, a Workers’ Compensation Judge and the Workers’ Compensation Appeals Board have sided with justice, fairness, and (the third of this wonderful trio) the employer!

In the case of Gloria Arana v. Hawthorne School District, a teacher’s aide sustained an injury in the year 2000 which, after a surgery in 2002, rendered her 100 percent permanently disabled.

The treating physician, and it appears there were no qualified or agreed medical evaluators used in this case, recommended in-home support eight hours per week and out-of-home support, such as grocery shopping, four hours per week.  This was a 2007 report, and the treatment recommendation was for 2002 and ongoing.

Defendant was faced with a demand for reimbursement of roughly 3000 hours of home care, and the continuing award of treatment for the “foreseeable future.”

The defense did not dispute the obligation to provide medical treatment in the future, but naturally objected to liability for treatment “prior to the date of a medical report establishing [the medical treatment’s] need.”

Any other result would have been ridiculous – the employer would have had no opportunity to contest the necessity of the medical treatment, negotiate a cheaper price from one of its providers, or rely on any of the other defenses usually available in such situations.  Unfortunately, history has shown that a preposterous result is not one to make the workers’ compensation system flinch.

Let a full-fledge WCDefenseCA salute issue to the WCJ and the WCAB for their wise and proper decision in this case.

Another Lien is Shot Down by the WCAB

It hasn’t been a good week for lien-claimant Alan Moelleken, M.D., on this humble blog of all things workers’ compensation.  In the case of Ricardo Zuniga v. Barrett Business Services, Inc., Dr. Moelleken had just recovered the cost of medical treatment through an award given by the workers’ compensation Judge on the case when the defendant petition the Workers’ Compensation Appeals Board and won a reversal.

Dr. Moelleken filed a lien for almost $9,000, after defendant had paid only $666.80 of the bills on the grounds that there was a valid Medical Provider Network in place and Dr. Moelleken was not in it.

The workers’ compensation Judge had reasoned, to Dr. Moelleken’s unending delight, that, although the defense had entered into evidence copies of letters sent to applicant (notifying him of the MPN) and to lien claimant (objecting to any treatment and putting it on notice that its bills would not be paid), there was no evidence that the letters were received.  Furthermore, the defense failed to put into evidence a value for the services provided other than zero.

The WCAB took a different approach.  With respect to the defendant’s burden of proof in showing that letters were received, the WCAB held that the “letter from defendant to applicant … is prima facie evidence of delivery of required notice to applicant of his rights under the MPN.”

But, the issue of the MPN defense aside, the WCAB went further to note that the lien claimant failed to carry its burden.  The burden of proving all elements of a lien fall on the lien claimant, including that the medical treatment provided was reasonably required to cure or relieve the injured worker from the effects of an industrial injury and that the claimed fee is reasonable.

Perhaps this goes to show that the one remaining tooth after the sad reversal in the Valdez case remains firm and sharp – even if an applicant ventures outside of an MPN, the defense does not have to pay the bills for it.

Appeal Filed in Valdez Case – MPNs May Rise Again!

Good news, dearest readers, good news!  Workers’ compensation defense attorneys often enough have to provide bad news, but today is an exception.

Bearing the hopes and dreams of the defense community, the defense in the Valdez case has filed a petition for a writ of review before the California Supreme Court.

As you may recall, the Valdez case has been an emotional and legal rollercoaster for all the lawyers and adjusters in California, as it first gave the Medical Provider Networks considerable teeth in an en banc decision before making it once-more toothless in a subsequently published Court of Appeal opinion.

If the Supreme Court elects to review the case, it will have to decide what the legislature intended in allowing for MPNs.  Was it just an effort to limit the medical expense imposed on the defense by pre-negotiating the costs of medical treatment for (allegedly) injured workers?  Or did the legislature intend to provide a middle-ground of medical-legal opinions?

It is my understanding that the Supreme Court Justices are regular readers of this blog, so I shall offer my reasoning and submit it to those Justices for consideration.

Prior to the “big reform” of 2004/2005, the parties used to retain their own Qualified Medical Evaluators; now there is a panel process that removes some of the choice from the parties.  The legislature most likely intended to do the same thing with the treating physician.  After all, the defense can create a medical provider network and the applicant may choose a treating physician from within that network, which should include at least 3 physicians of every specialty.

If, as the Court of Appeal found, reports of non-MPN treating physicians are admissible, hasn’t the applicant’s right to an Applicant Qualified Medical Evaluator survived the reforms and the defied the Legislature’s intent?  After all, an applicant with no exposure to the workers’ compensation system will likely defer to his or her attorney in terms of treating physician, and the applicant’s attorney probably knows a few physicians in each specialty that tend to… well… give undue weight to subjective signs of impairment.

Here’s hoping that the Supreme Court grants review and gives the MPN its teeth back!