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In Soto v. Sambrailo Packaging, 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB held that the WCJ erred in finding that the applicant who suffered an industrial injury to her neck, back and right shoulder was entitled to treat outside the defendant’s MPN because the defendant failed to meet the statutory MPN access standards in 8 Cal. Code Reg. § 9767.5 [R 9767.5] for a rural geographic area by not including three orthopedic surgeons willing to act as the applicant’s primary treating physician.
[Publisher’s Note: Citations link to lexis.com; bracketed cites link to Lexis Advance.]
The WCAB found that Labor Code § 4616(a)(1) [LC 4616] provides that MPNs are required to have an “adequate” number and type of physicians to provide treatment, and if the MPN provides access to an appropriate selection of specialists or physicians with appropriate expertise to provide medical treatment, the access requirements are satisfied and the employee must select a primary treating physician from within the MPN.
The WCAB further found that access standards applicable to the defendant’s MPN for a rural geographic area require that the defendant have at least three available primary treating physicians within 30 miles or 60 minutes of the applicant’s workplace capable of treating the applicant’s injury and three specialists who could treat the injury within 120 minutes or 60 miles.
Here, the defendant established there were sufficient numbers of available physicians within a rural geographic area with specialties capable of providing the applicant’s primary care, even though there were not three physicians with the specific specialty (orthopedics) selected by the applicant. Thus, because the access standards were satisfied, the applicant was not permitted to treat outside of the defendant’s MPN.
In Soto, the applicant sustained an admitted injury to her neck, back and shoulder. She wanted to designate an orthopedic surgeon who treated back injuries as her PTP. The defendant only had one such physician within the access standards. Applicant therefore argued that she had the right to treat with an orthopedic surgeon outside of the defendant’s MPN. The defendant argued that it was only required to provide an adequate number of doctors who were appropriate for her injury who could serve as her PTP. At the trial, the defendant presented the testimony of its medical director, an orthopedic surgeon and the manager of its MPN. The WCJ found that the defendant had violated the access standards and therefore the applicant was entitled to treat outside the MPN. Reversing the WCJ’s determination, the WCAB panel found that the defendant had at least three physicians within the rural access standards that were capable of treating common injuries; and that the applicant had not established that the defendant refused or neglected to provide her with treatment within its MPN.
In its opinion, the WCAB identified the issue under consideration as “whether defendant’s MPN provides the requisite selection of physicians available to assume the role of a primary treating physician.” The panel noted that California Code of Regulations, Section 9767.5(a) provides that an MPN “must have at least three available physicians of each specialty to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged…” (Emphasis added). However, the enabling statute for the regulation, Labor Code Section 4616(a)(1), only provides that the “MPN is required to have “an adequate number and type of physicians ... to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed.” Thus, the WCAB found that the defendant’s evidence proved that it had “a sufficient number of available physicians within the rural geographic area with specialties capable of proving applicant’s primary care, even if a physician with the specific specialty selected by applicant is unavailable.” The panel pointed out that if the applicant required specialty treatment, she could be referred to a specialist by her PTP selected from within the MPN and if a MPN specialist were not available, she could be referred to a non-MPN specialist. Since the defendant did not violate the rural access standards for selecting a PTP, the applicant was not entitled to select a non-MPN PTP.
This decision appears to conflict with the Board’s 2015 decision in Lescallett [lexis.com] [Lexis Advance] where the issue was whether the access standards for PTPs or specialists applied if the applicant designated a specialist as her PTP, which access standard applies. The applicant wanted a pain specialist as her PTP. The defendant had no pain specialists within the access standards for PTPs whereas it had four such doctors within the access standards for specialists. The Board ruled that if the doctor is the PTP, whether or not he’s also a specialist, the shorter access standard for PTPs applies. Thus, the defendant was required to authorize treatment with a non-MPN pain specialist.
In Lescallett, the defendant’s sole argument was that the longer access standards applied because the PTP was a specialist. The Board rejected this argument and said that 1) applicant had a right to select a specialist to be her PTP and 2) a pain specialist was appropriate for her injury. Defendant did not raise the issue of whether there were other doctors within the access standards for PTPs that were also “appropriate to treat common injuries,” as the defendant did in Soto. In Soto, the Board also said the applicant had a right to select a specialist or any other MPN doctor to be her PTP and clearly an orthopedist would have been appropriate for her injury. However, since the defendant had more than an adequate number of other types of doctors within the access standards who were equally appropriate to treat common injuries, there was no denial of care which is a necessary prerequisite for self-procured treatment.
It is possible that in Soto the Board was influenced by the fact that the out of network orthopedic surgeon with whom the applicant chose to treat was located 70 miles from her home.
If the analysis in Soto is correct, left unanswered is what does constitute an “appropriate selection of physicians”? Taking matters to the extreme, would three general practice physicians satisfy the requirement?
Also left unanswered is the question of how the second or third opinion process described by California Code of Regulations Section 9767.7 will work? The second and third opinion process comes into play when the applicant disputes the PTP’s diagnosis or the treatment prescribed. According to Soto, if the PTP in the MPN is a physiatrist and doesn’t think the person needs acupuncture, if there are no other physiatrists in the MPN, the employee could just select an occupational medicine doctor to render the opinion. This hypothetical becomes less practical the more unique and/or specialized the employee’s condition is. For instance, if there is only one oncologist on the panel, will a general internist suffice? Would a pain management specialist suffice if the question is shoulder surgery?
However, there are significant practical problems with interpreting Labor Code Section 4616(a)(1) as requiring three specialists in each treatment specialty to be available within the MPN. There is unquestionably the potential for abuse if such broad access requirements are mandated. For example, if the employee has an absolute right to three physicians in each specialty, the injured employee could simply select a specialty for which few specialists exist. For example, if the employee claimed an upset stomach due to the pain medication she was given due to a strained back, she could decide she wants a gastroenterologist to be her PTP. If there aren’t three gastroenterologists within the applicable access standards, she would be entitled to go outside of the MPN and then let the GI doctor refer her to other out of network doctors.
In conclusion, the medical treatment benefit is the most important benefit available to injured employees in California’s workers’ compensation system. The panel decision in Soto attempts to address some very real difficulties inherent to an MPN system. Going forward, it will be very interesting to see how subsequent courts resolve Soto’s interpretation of Labor Code Section 4616(d)(1) with the very specific language contained in California Code of Regulations, Section 9767.5(a).
Read the Soto noteworthy panel decision.
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