California: Do All Physicians Within the MPN Need to Be Specifically Designated?

How and when to make an argument

By Brad Wixen, Esq.

In Rivas v. North American Trailer, 2016 Cal. Wrk. Comp. P.D LEXIS 572, Applicant sustained a clearly significant injury when a chain and hook struck him in the head, causing a loss of consciousness, skull fracture, five days of hospitalization, and the surgical installation of a titanium plate into the skull. Continuing symptoms included dizziness, unsteadiness, and cognitive problems.

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The MPN provider list for the carrier included Casa Colina Transitional Living Center in multiple specialties. (Casa Colina is one of the premier, most respected rehabilitation centers for severe brain and spinal injuries in the state.) Within the MPN list provided by the carrier, two specialties within Casa Colina were marked with an asterisk, occupational therapy and physical therapy, limiting the designation "by referral only."

Applicant did designate this facility and selected one physician in particular, although that physician was not specifically described on the MPN list. That physician then wrote a report/RFA requesting 60 days of in-house post-acute physical rehabilitation. Applicant was described as having potential for self-endangerment.

The adjuster from the carrier decided that the RFA need not be responded to utilizing utilization review because the physician was "outside of the MPN." The adjuster wrote two letters to the physician objecting. And a denial of treatment was sent to Casa Colina based solely on the reasoning that, "you are not in our medical provider network."

Hearing was undertaken at the WCAB (because the carrier had foregone the UR/IRM process). Applicant was not present. The WCJ, after hearing the testimony, determined that Labor Code Section 4616(a)(3) and Title 8 of California Code of Regulations subsection 9767.5.1 provide for physicians designation of a physician acting on behalf of the medical group and duly included in an MPN, despite not being listed individually on the MPN list.

Defendants had several objections described in their Petition for Reconsideration: (1) The physician was not listed on the MPN; (2) The applicant did not appear for Trial; (3) The reports of Casa Colina were not substantial evidence to demonstrate that applicant required the treatment, which treatment they deemed duplicative and redundant.

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The WCJ in his discussion responded to defendant's argument that Casa Colina is merely a hospital and not a medical group. Looking at the information about Casa Colina, the WCJ noted that multidisciplinary treatment is part of the program. It was clear that the physicians making the requests for treatment were not doing so on behalf of their own individual practices but clearly were doing so within their capacity at Casa Colina. Proof of this assertion was offered by way of comparing addresses and stationery of the various reports issued by the physicians. The Judge also noted that the physician specialty was outside of "occupational therapy and physical therapy", the only ones requiring "referral only," as per the MPN list.

The judge reasoned, utilizing simple common sense, that in order for Casa Colina to provide rehabilitation for a brain injury as described in the MPN, applicant must be allowed to see the physicians who provide that treatment for Casa Colina. Therefore, applicant should be allowed to designate Casa Colina and any physicians acting on behalf of Casa Colina, whether they are on the “list” or not.

In reviewing case law, the Judge found no specific case directly addressing this issue. However, there was a writ denied case, Gonzalez v. WCAB (2012) 77 Cal. Comp. Cases 449, allowing an applicant to select physicians within US Health Works, a prominent industrial medical provider, whether they were on the MPN “list” or not.

Concerning defendant's assertions that the evidence was not substantial and that all of the treatment requested had already been provided, the Judge noted that no evidence for this had been submitted on the record.

Concerning defendant's complaint that applicant had not been present for Trial, the Judge found that defendants had not gone through the proper procedure to demand such testimony. They had made no such request prior to Trial. There was also no notice to appear nor subpoena.

Comments

Obviously, as attorneys, we are trained not to make judgments without knowing all the facts. It may well be that defendants in this case had a good medical reason to deny the treatment. Nonetheless, attorneys always need to keep in mind the overall impression of the facts of the case, to the observer, based on the information available. It is also not a realistic appraisal of how law really works to imagine that decisions are made simply on the legal issues without regard to the overall facts at hand.

The author has practiced more than a decade on both sides of the aisle individually. One of the hazards of the trade is when one stops evaluating the particulars of a given case or its perception, in favor of one's legal theories or simply the desire to “win”. It is usually not a good idea to pursue a disputed legal theory, even one having some validity, on a case that is not sympathetic.

Here, when someone has a significant traumatic brain injury and clearly requires some level of treatment, this may not be the appropriate case to argue an ambiguous legal issue for the first time when it would result in a significant denial of treatment. Procedure is always intertwined with the facts of the case. In general, Courts do not favor utilizing technical procedural exceptions to deny appropriate benefits to an injured worker. In retrospect, therefore, it a carrier should not rely solely on procedural grounds without going through UR/IMR, especially when the argument is essentially about medical necessity.

In cases such as these, the reader is left to wonder, i.e., without treatment, what would be applicant's fate? Here, Defendants to their credit do insist that applicant was provided all of the appropriate treatment and that the further treatment was redundant.

This brings us to a second important and perhaps obvious learning point. Never make an assertion without evidence. If there was evidence for this assertion, evidence was absolutely essential.

On the issue of applicant being required to testify, the reader is directed to our recent article analyzing this point; specifically, it is not an absolute duty for applicants to testify at trials. (See To Be or Not To Be Present: That Is the Question) And again, another learning point, do not raise a procedural issue unless one has gone through the appropriate methodology protocol to demand utilization of that procedure.

When a carrier attempts to deny a seriously brain injured applicant benefits on the basis that he was not present for trial, one must consider whether such an applicant is even capable of attending trial. Certainly there is missing information which could be decided in favor of either party but litigants need to consider these factors and the appearance of their argument.

As to the arguments in this particular case, although there is some ambiguity, this author believes the Judge’s common sense will prevail in the end. Whether the MPN is a hospital versus a medical group, whether the MPN list requires special referral or not, are not decisive. It simply is neither practical nor realistic to expect every applicant always to be seen by only designated doctors in a group at all times.

Finally, one additional word of warning. Beware of the issues that one asserts. They can come back to haunt you. Defendants have numerous industrial providers in the system. They are large medical facilities in numerous locations where injured workers are routinely sent, and the carriers approve of them and wish to continue this practice. When an applicant shows up at one of the industrial providers, such as US Health Works, would the carrier really want the applicant to be truly limited to one physician who happens to be described on the MPN list? If the applicant comes in at a different time of day, or if someone else is available or assists in treatment, is the defendant really asserting that that other physician who is a member of the designated MPN group is not competent?

Certainly the Court would be left to wonder whether a party is attempting to "doctor shop" by insisting that only some physicians within a facility are designated and others are not. Is one doctor more “biased” than the next? If defendants were to "win" on this issue, they would need to seriously consider whether in fact they would be happy with the outcome.

One more time: Litigants must go past their personal feelings and their sense of winning or losing on any particular case and look at the broader picture.

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