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The 2004 workers’ compensation reform package of SB 899 brought about many changes as to how employers were required to provide medical treatment to injured workers.
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The newly created Labor Code §§ 4616-4616.7 [LC 4616-4616.7] allowed employers to regain control of medical treatment by creating Medical Provider Networks (MPN) subject to the Labor Code and the Administrative Director’s (AD) regulations. (8 Cal. Code Reg. §§ 9767.1-9767.19 [R 9767.1-9767.19].)
I. MPN Regulations – Post SB 863
Almost 10 years later, the legislature attempted to fix apparent deficiencies in the MPN system when it implemented the WC reform package of 2013 with SB 863. The Administrative Director implemented new MPN regulations which had two primary goals:
> To make it easier for an IW to find an appropriate MPN doctor.
> To make it more difficult for an IW to treat outside the MPN
The latest round of MPN regulations which became effective on 8/27/2014 place some additional burdens on both the injured worker seeking treatment and the employer providing treatment through its MPN. Many litigators do not yet know about these new regulations: 8 Cal. Code Reg. §§ 9767.1-9767.19 [R 9767.1-9767.19] can be found at: http://www.dir.ca.gov/DWC/DWCPropRegs/MPNRegulations/MPN_Regulations.htm
PRACTICE NOTE: Practitioners should be read and carefully study these new regulations, so as not to be caught unaware at expedited hearings as illustrated in the three Noteworthy Panel Decisions summarized below. Some of the most common regulations that are not widely known are as follows:
> 8 Cal. Code Reg. § 9767.1(a)(16) [R 9767.1] defines an “MPN Medical Access Assistant” (MAA) (which is now required by 8 Cal. Code Reg. § 9767.5 [R 9767.5]) as an individual available in the U.S. to help injured workers find doctors and schedule appointments.
> 8 Cal. Code Reg. § 9767.5(h) [R 9767.5] requires each MPN to have both English speaking and Spanish speaking Medical Access Assistants available to help injured workers Monday through Saturday, from 7am to 8pm (Pacific Time).
> 8 Cal. Code Reg. § 9767.5(h)(1) [R 9767.5] requires that the MPN have sufficient “MAAs to respond to calls, faxes or messages by the next day, excluding Sundays and holidays.”
> 8 Cal. Code Reg. § 9767.5(h)(2) [R 9767.5] explains that the “MPN medical access assistants have different duties than claims adjusters. MPN medical access assistants work in coordination with the MPN Contact and claims adjuster(s) to ensure timely and appropriate medical treatment is provided to the injured worker. Although their duties are different, if the same person performs both, the MPN medical access assistant’s contacts must be separately and accurately logged.”
> In addition to the MAAs, 8 Cal. Code Reg. § 9767.1 a)(20) [R 9767.1] requires each MPN to hire individuals designated as the “MPN Contact.” These individuals must be available to respond to complaints and to answer questions about the MPN and to assist injured workers who wish to arrange for an MPN Independent Medical Review (IMR) per Labor Code § 4616.4 [LC 4616.4].
> 8 Cal. Code Reg. § 9767.16 [R 9767.16] sets forth the MPN Complaint Process – This is a new process whereby, if the injured worker has a complaint about the MPN, he or she SHALL first (unless an emergency situation exists) submit their written complaint to the MPN Contact defined above. The MPN then has 30 days to respond. If this action does not resolve the injured worker’s issue, the injured worker may then file a complaint with the DWC. The DWC MPN Complaint Form 9767.16.5 can be found at: http://www.dir.ca.gov/dwc/DWCPropRegs/MPNRegulations/MPN-Final-%20Regulations/FORMS/MPNComplaintForm9767.16.5.Strikeout.pdf
> 8 Cal. Code Reg. § 9767.5(f) [R 9767.5] requires that for non-emergency services, the MPN shall ensure that an appointment for the first treatment visit under the MPN is available within three business days of a covered employee’s notice to an MPN medical access assistant that treatment is needed.
> 8 Cal. Code Reg. § 9767.5(g) [R 9767.5] states in pertinent part, “If an MPN medical access assistant is unable to schedule a timely medical appointment with an appropriate specialist within ten business days of an employee’s request, the employer shall permit the employee to obtain necessary treatment with an appropriate specialist outside of the MPN.” (Emphasis added.)
II. Proper Application of MPN Access Standards
The most frequent issue that arises at expedited hearings with regard to MPNs deal with “access standards” and notice requirements. The regulatory “access standards” require that each MPN provide a list of a certain number of available physicians to the injured worker. In addition, those physicians must be within a certain distance or travel time from the injured worker’s home or work. These “access standards” and notice regulations are relatively straightforward and are as follows:
> 8 Cal. Code Reg. § 9767.6(e) [R 9767.6] states in relevant part, “At any point in time after the initial medical evaluation with an MPN physician, the covered employee may select a physician of his or her choice from within the MPN.”
> 8 Cal. Code Reg. § 9767.5(a)(1) [R 9767.5] requires each MPN provide at least three primary treating physicians (PTPs) within 30 minutes or 15 miles of the injured worker’s home or work.
> 8 Cal. Code Reg. § 9767.5(a) [R 9767.5] and 8 Cal. Code Reg. § 9767.5(a)(2) [R 9767.5] require each MPN provide 3 specialists within 60 minutes or 30 miles of the injured worker’s home or work.
> 8 Cal. Code Reg. § 9767.5(c) [R 9767.5] requires that the employer have a “written policy” which authorizes medical treatment outside the MPN, if the MPN can not meet these access standards.
> 8 Cal. Code Reg. § 9767.12 [R 9767.12] and 8 Cal. Code Reg. § 9767.6(d) [R 9767.6] require that the defendant provide all mandatory MPN notices.
Set forth below are summaries of three recent WCAB noteworthy panel decisions which discuss how these “access standard” regulations have been applied in practice.
A. Lorena Saldana – Required to Treat Within the MPN
The noteworthy panel decision (NPD) of Saldana v. Dirt Cheap, 2015 Cal. Wrk. Comp. P.D. LEXIS 144 [2015 Cal. Wrk. Comp. P.D. LEXIS 144], dealt with a warehouse worker named Lorena Saldana. She sustained an admitted industrial injury to her neck and upper extremities on 4/1/2013 and was sent to a provider in the employer’s MPN, US Healthworks, for treatment. She treated with this group for a period of time, but was not satisfied with her care. So she left the MPN medical providers and sought treatment outside the MPN.
A trial was held on 10/23/2014 on the issue of whether or not Ms. Saldana was entitled to treat outside of the employer’s MPN. The judge found in favor of Ms. Saldana and awarded her the costs of her self-procured medical treatment.
When the issue was presented to the WCAB commissioners, they had a different take on this matter. First, they looked to see if Ms. Saldana received all requisite notices from the carrier. They determined she had and concluded, “On July 18, 2013, defendant sent applicant MPN notification in English and Spanish, including information regarding what to do if the injured worker disagrees with his MPN doctor.”
Since Ms. Saldana was served with all appropriates notices, she was provided with the opportunity to understand her options in the event she disagreed with her MPN doctor. Leaving the MPN because she did not like her initial physician was not one of the options. Under the applicable MPN law (Labor Code § 4616 [LC 4616]), if Ms. Saldana did not like the medical treatment that her MPN doctor was prescribing, she had the following two choices:
1. She could change physicians within the MPN per 8 Cal. Code Reg. § 9767.7 [R 9767.7]; or
2. She could take advantage of the MPN’s Independent Medical Review (IMR) process, per Labor Code § 4616.4 [LC 4616.4] and 8 Cal. Code Reg. § 9767.7 [R 9767.7].
The MPN IMR process requires that the injured worker first seek a second and even a third opinion from an MPN physician. Labor Code § 4616.4(b) [LC 4616.4] then provides in pertinent part, “If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physician’s opinion in accordance with Section 4616.3.” (See also MPN Regulations at 8 Cal. Code Reg. §§ 9767.6–9767.7 [R 9767.6-9767.7].)
PRACTICE NOTE: Practitioners should not confuse the MPN’s IMR process under Labor Code § 4616.4 [LC 4616.4] with the IMR process that is the sole appeal option from a Utilization Review (UR) decision, under Labor Code §§ 4610.5 and 4610.6 [LC 4610.5, 4610.6]. (For UR IMR regulations, see 8 Cal. Code Reg. § 9792.10.1 [R 9792.10.1].) These two different IMR systems are not related and serve totally different purposes, under totally different sections of the Labor Code. Practitioners should always reference the appropriate code section (either Labor Code § 4616.4 [LC 4616.4] for the MPN’s IMR or Labor Code § 4610 [LC 4610] for the UR’s IMR) if there is any chance of confusion between the two.
In this case, Ms. Saldana did not avail herself of either of her two available options under the MPN. In order for her to receive treatment outside the of the MPN, the WCJ would have been required to make a specific finding that the defendant failed to comply with the law in some way, such as failing to provide a required notice, and that “failure to provide notice resulted in a denial of medical care.”
Labor Code § 4616.3(b) [LC 4616.3] provides:
“The employer shall notify the employee of the existence of the medical provider network established pursuant to this article, the employee’s right to change treating physicians within the network after the first visit, and the method by which the list of participating providers may be accessed by the employee. The employer's failure to provide notice as required by this subdivision or failure to post the notice as required by Section 3550 shall not be a basis for the employee to treat outside the network unless it is shown that the failure to provide notice resulted in a denial of medical care.” (Emphasis added.)
In this case, since the parties stipulated that the appropriate MPN notices were provided to Ms. Saldana, and there was no other non-compliance by defendant, there can be no finding that the defendant’s non-compliance resulted in a failure to provide medical treatment.
Therefore, the WCAB rescinded the findings of the Judge and substituted the following findings of fact instead:
“1. It is found that applicant was properly notified of the Medical Provider Network.
2. Defendant has not denied, refused, or neglected to provide medical treatment to applicant for the accepted body parts (neck, right shoulder, and left elbow).
3. Treatment for the accepted body parts (neck, right shoulder, and left elbow) shall remain within the MPN.”
B. Estaban Escobar – Permitted to Treat Outside the MPN
In the noteworthy panel decision (NPD) of Escobar v. PRN Ambulance, 2015 Cal. Wrk. Comp. P.D. LEXIS 186 [2015 Cal. Wrk. Comp. P.D. LEXIS 186], Estaban Escobar suffered an admitted industrial injury to his neck and spine on 7/10/2014. He promptly sought medical treatment within his employer’s MPN. After difficulty securing treatment with a chiropractor, he sought assistance from the WCAB at an expedited hearing on 1/14/2015. The Judge used the “specialist access standard” and ordered the defendant to provide Mr. Escobar with a choice of 3 chiropractors within 60 minutes or 30 miles of his home or work.
Mr. Escobar filed a Petition for Reconsideration from the judge’s order. He argued that he was entitled to designate a chiropractor as his primary treating physician (PTP). Therefore, the correct “access standard” regulation for selection of the chiropractor would be the one for primary treating physicians, i.e. 8 Cal. Code Reg. § 9767.5(a)(1) [R 9767.5] which requires the MPN provide 3 PTPs within 30 minutes or 15 miles of injured worker’s home or work. The “specialist access standard” found in 8 Cal. Code Reg. § 9767.5(a)(2) [R 9767.5], and used by the judge, requires 3 specialists within 60 minutes or 30 miles of the injured worker’s home or work. Mr. Escobar argued this was not the appropriate “access standard” to utilize in this situation.
In addition, the judge’s remedy (which was to order the defendant to comply with the “specialty access standard” regulation), was in error. Mr. Escobar argued that the proper remedy was to order the defendant to authorize medical treatment outside the MPN per 8 Cal. Code Reg. § 9767.5(c) [R 9767.5], since defendant was unable to meet the appropriate PTP access standards in a timely manner.
The WCAB agreed with Mr. Escobar and issued the following Order, “Defendant shall authorize applicant to select a chiropractor as his primary treating physician outside the MPN.”
PRACTICE NOTE: The newly amended regulation 8 Cal. Code Reg. § 9767.6(e) [R 9767.6] deals specifically with the selection of a chiropractor as a PTP. This new rule was not discussed in this NPD, but practitioners should be aware of its content as follows:
“(e) At any point in time after the initial medical evaluation with an MPN physician, the covered employee may select a physician of his or her choice from within the MPN. Selection by the covered employee of a treating physician and any subsequent physicians shall be based on the physician's specialty or recognized expertise in treating the particular injury or condition in question. If a chiropractor is selected as a treating physician, the chiropractor may act as a treating physician only until the 24-visit cap is met unless otherwise authorized by the employer or insurer, after which the covered employee must select another treating physician in the MPN who is not a chiropractor, and if the employee fails to do so, then the insurer or employer may assign another treating physician who is not a chiropractor.” (Emphasis added as to the new section regarding chiropractors as PTPs, effective 8/27/2014).
C. Shirley Lescallett – Permitted to Treat Outside the MPN
In the noteworthy panel decision of Lescallett v. Wal-Mart, 2015 Cal. Wrk. Comp. P.D. LEXIS 196 [2015 Cal. Wrk. Comp. P.D. LEXIS 196], Shirley Lescallett tripped and fell at work on 7/6/2010 and injured her neck, shoulder and knee. In 2014, Ms. Lescallett decided to change PTPs within her employer’s MPN per Labor Code § 4616.3(b) [LC 4616.3]. She attempted to select a pain management PTP per 8 Cal. Code Reg. § 9767.6(e) [R 9767.6]. However, Ms. Lescallett alleged that the MPN did not provide adequate PTPs in pain management in accordance with the PTP access standards set forth above, since defendant could only offer the following:
> 4 pain management doctors w/in 60 minutes or 30 miles of her home or work (Access standard for specialists)
> 23 doctors of other specialties w/in 30 minutes or 15 miles of her home or work (access standard for PTPs)
Defendant explained that they had met the access standard for “specialty doctors” and since “pain management” was a specialty, they were compliant with the regulations and Ms. Lescallett was not entitled to treat outside the MPN.
The issue was brought before a judge at an expedited hearing, who agreed with the applicant, as did the WCAB Commissioners on Reconsideration. The WCAB held that Ms. Lescallett was entitled to select a pain management doctor as her PTP and stated, “This is consistent with Section 4616.3(d), Rule 9785(a) and Rule 9767.5(a), which instruct both employer and employee that the primary treating physician should be an appropriate specialist or expert.” Citing Magana v First Alarm, 2012 Cal. Wrk. Comp. P.D. LEXIS 364 [2012 Cal. Wrk. Comp. P.D. LEXIS 364].
Since defendant could not meet the PTP access standards, Ms. Lescallett was authorized to select a pain management physician as her PTP outside of her employer’s MPN.
The trials in Saldana and Lescallett were held just prior to the release of the new MPN regulations which became effective as of 8/27/2014. The Escobar trial was held five months after the new regulations became effective. It is interesting to note that none of these cases discussed some of the more pertinent sections of the new MPN regulations, such as the role of the “MPN Medical Access Assistant” (per 8 Cal. Code Reg. § 9767.1(a)(16) [R 9767.1]), or the role of the “MPN Contact” (per 8 Cal. Code Reg. § 9767.1(a)(20) [R 9767.1].)
It is also interesting to consider what other judges and the WCAB might decide in the event that either the MPN “Medical Access Assistant” or the “MPN Contact” fail to perform their assigned duties per the new MPN regulations. What might the judicial holding be if the employer fails to staff their MPN with the required MPN “Medical Access Assistants” or the required “MPN Contacts,” in direct violation of the new regulations? If the judge determined the failure to comply resulted in a “denial of medical treatment,” would the injured worker then be authorized to seek treatment outside of the MPN?
In the cases summarized above, there was also no discussion of the new “MPN Complaint Process” per 8 Cal. Code Reg. § 9767.16 [R 9767.16]. Is the injured worker required to exhaust their administrative remedies through this new “MPN Complaint Process,” prior to filing a DOR for expedited hearing?
Query for another day: Would the results in the cases summarized above have been different if these new MPN regulations had been considered at trial?
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