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!

Defendant Bears Burden of Validating MPN

We have all read the Court of Appeal opinion in the Valdez case.  Applicants can treat where they like and choose a quasi-QME to write admissible reports.  No doubt, applicants’ attorneys will guide their clients towards a balanced and honest physician with the sole aim of making applicant healthy enough to return to work, and not to inflate applicant’s impairment rating.

So, the defense is stuck with the consolation prize of not having to pay for treatment, even though it will be showered with report after report saying that the paper cut sustained at home is industrial and has caused 100% disability.

Enter the Fernando Sarmiento case.  Mr. Sarmiento filed two claims against Payroll Management Group/Blue Chip Recycling.  Applicant treated outside of the defense’s medical provider network, and defendant’s efforts to compel treatment within the MPN were met with stiff judicial resistance.

Taking its case to the Workers’ Compensation Appeals Board, the defense rightly argued that the Valdez en banc case entitled the defense to at least some protection through its MPN.  Mind you, dear readers, that this panel decision pre-dates the Court of Appeal decision by about two weeks.

But the WCAB was of little help to the defense, denying the petition for reconsideration, it treated defendant’s petition as one for removal and denied it as well.  Apparently, the defense had not (yet) proven that it had a properly established and noticed MPN.

But, the WCAB did provide a method by which the defense could prove the validity of its MPN and reap the limited benefits of the MPN and what the Court of Appeal left standing from Valdez.

Reasoning that “a defendant, as a party, is entitled to file a declaration of readiness to proceed to an expedited hearing to determine the employee’s entitlement to medical treatment,” the WCAB held that the defendant must file a declaration of readiness to proceed to expedited hearing, and prove that it has a properly established and noticed MPN.  (See: Breanna Clifton v. Sears Holding Corporation).

Lock and load, dear readers, there is yet another step in the workers’ compensation dance.

MPN Defects Can Be Cured; Lien Problem, Not So Much…

Can a defect in a Medical Provider Network be cured?  The answer appears to be “yes” according to at least one workers’ compensation Judge and the Workers’ Compensation Appeals Board in the case of Sara Ochoa v. Bel Aire Window Coverings.

Lien claimant Aspen Medical Resources petitioned the Workers’ Compensation Appeals Board for reconsideration of the workers’ compensation Judge’s order dismissing its lien.  The WCJ held that lien claimant had “failed to meet their burden of proof that their charges were credible or reasonable,” and that “defendant had a valid Medical Provider Network in place at the time of lien claimant’s date of services.”

Lien claimant argued that the Medical Provider Network was defective, but didn’t provide any reasoning.  In any case, applicant was referred to a chiropractor shortly after her injury, but notices of the MPN were not sent to her or her treating chiropractor until after she began treatment.

So the only possible theory lien claimant could go on to challenge the validity of the Medical Provider Network is that the notices of the MPN were not provided at the time of injury.  Swing and a miss.  As the WCAB put it, “a delay in serving the injured worker with required MPN notice does not mean that a defendant is liable forever after for the costs of any and all treatment self-procured by the injured worker.”

The WCJ also held that the “durable equipment” of a hot/cold therapy unit would only be “reasonably necessary” if applicant had undergone surgery, which she had not.  The instructions for use of the equipment specifically stated its purpose was to help post-surgery recovery.

Now, another twist to this case was lien-claimant’s objection, made at trial, that  defendant did not provide a proof of service of its trial exhibits.  The WCJ held that the “objection amounted to surprise and an attempt to catch the opposing side off guard” and that “[l]ien claimant had more than enough time to review the exhibits prior to the trial.”

It certainly looks like the old tricks of lien claimants are starting to resemble duck suits during hunting season.

The MPN is Back! (For Now)

The post made on Wednesday had some scary implications.  Fortunately, it appears there may be a light at the end of the tunnel, and this time it has a 50-50 chance of not being a train.

In the case of Michael Thomas v. Safeway Stores Inc., the Workers’ Compensation Appeals Board had previously ruled that the self-insured employer must pay for surgery to be performed by a surgeon in Washington, even though there were eleven surgeons in Safeway’s medical provider network which could do the surgery and were close to applicant’s residence in the San Francisco Bay Area.

Panic ensued among the defense community as the California Applicant’s Attorneys Association toasted to the death of the MPN over flutes of champagne.  But it appears that Safeway stood firm and in filing a petition for reconsideration was rewarded with the sight of the WCAB blinking.

Standing firm against the waves is a sensation every workers’ compensation defense attorney wants to feel – staying standing when the wave crashes against you is one rarely felt.

A new order issued granting reconsideration, giving the parties ten days to settle this dispute or to return to the workers’ compensation judge to give the defense a chance to cross-examine the panel qualified medical evaluator and offer rebuttal evidence.  After all, defendant’s due process rights were summarily brushed off thus far.

Defendant’s offer to settle the matter was fairly reasonable:  Safeway would pay for the surgery under the California fee schedule and applicant would pay for travel and lodging.  There is no word yet on whether the applicant, let alone the surgeon in Washington, would agree to these terms.

In short, it appears that sanity might return to the world of workers’ compensation, even if for a short while.  Workers’ compensation lawyers and adjusters can rejoice in that, at least for now.  Despite rockets red glare and bombs bursting in air, the MPN flag is still there!

In what is quickly developing into an MPN trifecta here at WCDefenseCA, drop by on Monday to see another pro-MPN opinion recently released into the wild.

Another Cut at the MPN

Gather around, dear readers, and let your eloquent and intriguing blogger tell you a story.  Once upon a time, in a realm known as California’s workers’ compensation, defendant employers came together to for the mutual benefit of employers and employees alike, creating the medical provider network system to weed out prescription-happy and over-billing medical care providers.

All was well with the world, but at every turn applicant’s attorneys, to the detriment of their clients, and medical providers, to the detriment of their patients, tried to overthrow the MPN system.  The fate of MPNs dangled precariously and uncertainty filled the air when, to the surprise of all, the Workers’ Compensation Appeals Board issued several en banc opinions in the Valdez case, declaring that applicants must limit their treatment to medical provider network physicians, that the reports of non-MPN physicians were inadmissible, and that insurance companies and self-insured employers were not liable for the non-MPN medical bills.  And joyous celebration erupted in the streets!

Then, of course, the world of workers’ compensation came back to its senses and tossed the rule of law out the window.

The case of Michael Thomas v. Safeway Stores, Inc. is making the rounds and creating quiet a bit of chatter on and off the internet.

Michael Thomas sustained an injury to his shoulder and required surgery.  However, applicant’s treating physician wrote a report in which he claimed that the 11 MPN orthopedic surgeons in the San Francisco Bay Area were not qualified to perform the surgery, and that the only man in the world that could possibly save applicant’s shoulder was a surgeon in Washington who had written several articles on the matter and performed the surgeries with some regularity.  One of the treating physician’s more memorable quotes: “If Mr. Thomas was my family member, [the Washington surgeon] is the only one I would even consider treating a case like Mr. Thomas’s.”

I only wonder where the treating physician would send Mr. Thomas if the treating physician himself had to pay for the surgery – it is so easy to be generous with the money of others, after all.

Applicant petitioned for reconsideration of the Workers’ Compensation Judge’s ruling denying the treatment, arguing  that the “reasonable geographic area,” as contemplated by California Code of Regulations section 9780 can be determined on a case-by-case basis, and in this case should include the 812 mile distance to the Washington surgeon’s office.  The WCAB ruled that  the facts in this case compel a finding that a surgeon in Seattle, Washington is in the reasonable geographic area of San Francisco.  Naturally, defendant must pay for flights, accommodations, and whatever fees may come.

Doesn’t this case mean that all you need to beat an MPN is to have a treating physician say none of the locals are qualified?  Hopefully, this will be an isolated lapse in judgment rather than a new policy.