More Bad News on Valdez

And so, the bad news continues.

The Court of Appeal, having struck down part of the Valdez en banc decision, has now ordered its opinion to be published.  The Valdez case previously held that applicant’s treatment outside of a validly established Medical Provider Network is not to be at an employer’s/insurer’s expense and any reports or evidence generated will be inadmissible.

Granting applicant’s petition for reconsideration, the Court of Appeal, in an unpublished opinion, reversed the Workers’ Compensation Appeals Board, instructing it to allow extra-MPN reports and evidence to be admitted.  Now, it appears, that opinion has been ordered published and has become cite-able authority.

The only remaining silver lining is that employers/insurers are (for now) not liable for payment of these reports.

How many shoes should we expect to drop?

Valdez Struck Down in its Prime!

And so it was in the world of California workers’ compensation defense, as the voices of joy and celebration were silenced by the Court of Appeal on May 29, 2012.  And, what historians would one day call the “Valdez bubble of sanity” came to an end.

In a (mercifully unpublished) opinion, has reversed the Workers’ Compensation Appeals Board in the Valdez case, and ruled that extra-Medical Provider Network reports are admissible.  The Court of Appeal does not address who pays the bills in these cases, so presumably the en banc decision in that regard still holds – if the applicant wants non-MPN treatment and reports, the applicant can pay for them.

The Court of Appeal purports to effect the Legislative intent, but your cynical and doubtful blogger can’t help but wonder why the Court of Appeal thinks that the Legislature intended to force the defense into the panel QME system, while allowing applicants to retain their own QMEs as was the case before the SB-899 reforms.

After all, isn’t the unrestrained choice in treating physicians, without allowing any sort of control on the part of the defense, effectively allowing applicants to retain a PQME?

In its reasoning, the CoA notes that “[i]t does not make sense, however, to construe section 4616.6 as a general rule of exclusion, barring any use of medical reports other than those generated by MPN physicians.”   But that’s what Article 2.3 does – it specifically lists the manner in which treatment may be obtained – through an MPN physician, dispute resolution through an independent medical review, or case-by-case exceptions for when a certain specialty is not within the MPN.  The legislative scheme appears to be fairly adamant about limiting expert-shopping, both on the treatment front and in the medical-legal process.

The CoA also relies on the reasoning that section 4062.3 allows the parties to submit treatment reports to the panel Qualified Medical Evaluator (“[a]s the Legislature permitted the parties to submit non-MPN medical reports to the qualified medical evaluator, there is no basis to infer a legislative intent to preclude their use in other proceedings.”)  But, again, Labor Code section 4062.3 must be read in the context of the entire reform, which precludes non MPN reports except in very specific circumstances.

Fortunately, this is an unpublished decision.  So, in subsequent cases, when your eager defense attorney cites to the en banc panel opinion in Valdez, the record will not support a citation to the Court of Appeal decision reversing it or its reasoning.  Unfortunately, we can expect another Valdez decision from the WCAB shortly that will be citable and will be, more or less, in line with Court of Appeal decision.

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.

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.

The WCAB is Consistently Inconsistent

If today’s blog post appears to be the product of an attorney, fiercely committed to the defense of his clients, but tragically suffering from vertigo, that attorney hopes you will forgive him – one of the more recent Workers’ Compensation Appeals Board panel decisions has left his head spinning.

A little background – we all read the Breanna Clifton v. Sears Holding Corporation case where three WCAB commissioners unanimously 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.”

It was all so simple – and now it’s not.  (Are your spider-senses tingling yet?)

In the recent case of Juan Carillo Matancias v. Milk Maid Dairy, applicant sustained an injury to his knee, when a birthing milk cow pushed him through a fence.  He was treated by a physician within the Medical Provider Network and then released from care seven months later.  At the time of the injury, applicant was provided an explanation of the MPN and a link to a website listing all of the MPN doctors.

Applicant was unhappy with being discharged to return to work and sought additional treatment from a non-MPN physician.  After the trial and conclusion of the case-in-chief, lien claimant sought to have its $15,000 bill paid by the defendant.

But the defendant had Clifton.

Raising the MPN defense to the lien, the defense had to sustain an adverse ruling from the workers’ compensation Judge who found that it is the defendant’s duty to prove the MPN is valid, even it the lien claimant does not raise it as an issue at trial, and the fact that the MPN is listed on the AD’s website is “weak sauce,” as the kids are known to say these days, without the defendant presenting that evidence at trial.

Nor did the defendant obtain relief from the WCAB, with two out of three commissioners holding that the MPN defense fails because there was no proof that defendant informed applicant, at the time of his discharge, that he could challenge the release from care or that the lien claimant was not in the MPN.

But even if we were to concede these facts, the lien claimant KNEW that it was not entitled to payment.  The lien claimant, a repeat player, built its business model around charging ahead with providing treatment, and then litigating the costs to recover payment.  After all, even without the lien claimants experience with other cases, the objection letters from the defendant came early and came often.

In any case, perhaps, dear readers, we must do the MPN dance at trial, regardless of the facts.