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On MPNs and Illiteracy

Labor Code section 4616 allows for the creation of a Medical Provider Network (MPN).   MPNs are an effective way to reduce excessive medical bills.  Although applicants and their attorneys might sometimes disagree, MPNs also serve the injured worker by preventing excessive, unnecessary and sometimes dangerous “treatments” from being administered to the unknowing applicant.  The MPN is one of the gems that came out of SB-899 and California Workers’ Compensation reform.

When an applicant demands treatment or a treator, the MPN is a great defense against overpriced and over prescribing samples of both, but it also comes with technical requirements that must be met for it to be valid.  Among these requirements is the necessity of providing the worker with written notice of the existence of the MPN.

That’s all well and good, but what if the applicant can’t read?  The Workers’ Compensation Appeals Board recently addressed this issue in the case of Rodriguez v. Grimmway Enterprises, Inc.  (As an aside, it appears that Grimmway Enterprises, Inc., is self-insured.  For some of the benefits of self-insurance, see here.)

There, the applicant was illiterate, and the employer’s notices regarding its MPN went unanswered.  Oddly enough, applicant’s attorney, who in all likelihood is literate, was copied on these notices as well, yet did not respond to them.

The WCAB held that applicant is not entitled to self-procure medical treatment because “[t]here is nothing in the rules requiring defendant to determine applicant’s literacy and there is no evidence that defendant knew or should have known of applicant’s illiteracy.”

Reading this case, a few questions seem to come forward:

(1)   What if the applicant is literate, but only in a language other than English?

(2)   What if the defendant had known that the applicant was illiterate?

One is easily answered – 8 CCR § 9767.12 specifically state that the notices regarding an employer’s/insurer’s MPN are to be made in English and Spanish.  If your applicant is only literate in Russian, Portugese, Gaelic or any language other than English or Spanish, then it appears he or she is out of luck.

Regarding the second question, there is no way to know for certain.  The language used by the WCAB appears to leave open the question of what would have happened had the employer known that applicant was illiterate.  In any case, whatever heightened duty the WCAB might find owed by the employer to its illiterate employees, your humble author would argue that this duty is discharged by serving a copy to applicant’s attorney.  Ideally, the attorney would be (1) literate; and (2) familiar enough with his or her client to know that he or she is NOT literate.

Another point that is so obvious that it might go unnoticed is the following:  since reconsideration was granted, the Workers’ Compensation Judge agreed with applicant’s position.  This is another example of the discouragement defendants can often experience, but it is also an example of why decisions absolutely must be appealed and fought, especially when they are in clear conflict with the law.

In either case, Grimmway made the smart move by (1) setting up an MPN; and (2) sending written notices in English and Spanish.  Are you doing the same?

  1. July 6, 2011 at 10:09 am

    Have you ever been to the WC Board? The attorneys walk in, call out their clients name and wait for a response from the people gathered there. So, if they don’t know what their client looks like, how likely is it that they know their literacy status? Should they, of course, is it appropriate to assume that a represented employee is truely represented and the attorney is making sure they understand everything, of course.

    • July 6, 2011 at 10:17 am

      Glenda, I’ve seen what you’re talking about several times. But this seems to be a time-management decision on the part of the attorneys and their firms. There is an intake process for applicants’ firms, and if those firms don’t invest in good communication or file preparation, I would hardly fault the insurance company or self-insured employer.

      I’ve often encountered the mentality that the defendant must almost prosecute the applicant’s case for him or her. The Board made the right decision here – the applicant should demand more attention from his or her attorney (or whoever does the intake at that firm), that’s what the attorney fee is supposed to pay for.

      Do you think the Board made the right decision?

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