California: Stipulation to Treatment Outside a Medical Provider Network

In Shawl v. Steve’s Automotive, 2015 Cal. Wrk. Comp. P.D. LEXIS --, a split WCAB panel rescinded the WCJ’s decision and held that the applicant, who incurred an industrial injury to multiple body parts on 3/7/2001, was entitled to continue treatment with Jacob Rabinovich, M.D., outside the defendant’s MPN.

The defendant had previously stipulated to Dr. Rabinovich as the applicant’s primary treating physician after implementing its MPN. The defendant had made no showing of good cause to set aside the stipulation and to require the applicant to obtain a different primary treating physician in the MPN.

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The WCAB panel found that 8 Cal. Code Reg. § 9797.9(a) (should be R 9767.9(a) [R 9767.9(a)]) expressly recognizes that the employer or insurer may “authorize” treatment by a provider outside the MPN regardless of whether the injured worker meets any of the specified conditions preventing transfer of care into an MPN.

In this case, the defendant’s stipulation to Dr. Rabinovich as the applicant’s treating physician served as its authorization for the applicant to treat outside the MPN as described in 8 Cal. Code Reg. § 9797.9(a) (should be R 9767.9(a) [R 9767.9]), because the MPN was already implemented.

The WCAB further noted that the defendant made no showing of a change in law or judicial interpretation of a statute that would provide good cause to relieve the defendant from its stipulation, nor did the defendant show a change in the applicant’s condition or circumstances to support the removal of Dr. Rabinovich as the applicant’s treating physician.

Therefore, absent a showing of good cause to allow the defendant to withdraw from the stipulation, the refusal to authorize the medical treatment requested by Dr. Rabinovich could be construed as neglect or a refusal to provide medical treatment, subjecting the defendant to liability for self-procured treatment pursuant to Labor Code § 4600 [LC 4600], Knight v. United Parcel Service (2006) 71 Cal. Comp. Cases 1423 [71 CCC 1423] (Appeals Board en banc opinion), and 8 Cal. Code Reg. § 9797.9 (should be R 9767.9 [R 9767.9]).

COMMENTARY:

The split panel decision of Shawl highlights the power of an agreement between the parties regarding the use of treating physicians along with the transfer methods that exist if no agreement is reached for a use of a physician that is not within a defendant’s MPN.

The majority also discussed a point that should be considered by all insurance carriers that encounter a dispute over medical control when a MPN is in place and the injured worker is treating with a physician that is not currently a part of the MPN. “An efficacious physician-patient relationship is an ingredient aiding in the success of medical treatment because it inspires confidence in the patient, and a lawfully established physician-patient relationship should be preserved unless there is a change in the employee's condition or the treatment  being provided is defective or incomplete.”

Of additional note, the majority’s reliance on several appellate cases that were decided long before the MPN process existed (e.g. Voss v. Workmen's Comp. Appeals Bd. (1974) 10 Cal.3d 583 [39 Cal.Comp.Cases 56]; Zeeb v. Workmen's Comp. Appeals Bd. (1967) 67 Cal.2d 496, 502 [32 Cal.Comp.Cases 441]; and McCoy v. Industrial Acci. Com. (1966) 64 Cal.2d 82 [31 Cal.Comp.Cases 93]), highlight another important aspect of MPN protocol. The point being that if the proper MPN rules are not followed, a denial of care may be present allowing the injured worker to self-procure medical treatment. (See e.g., Knight v. United Parcel Service (2006) 71 Cal.Comp.Cases 1423 [71 CCC 1423] (Appeals Board en banc opinion).) In instances where treatment is obtained outside of an established MPN or where the employer desires to transfer an injured worker into its MPN, if an effective physician-patient relationship exists, it is observed by this commentator that it may be better to apply the utilization review protocol set forth in Labor Code section 4610 [LC 4610] rather than destroy a long term existing physician-patient relationship.

The dissenting opinion reflects the other side of the coin of the issue of future medical care. Relying on the en banc WCAB decision of Babbitt v. Ow Jing (2007) 72 Cal.Comp.Cases 70 [72 CCC 70], the dissenting commissioner observed that injured workers may be transferred into MPNs regardless of the date of injury or date of the award of future medical care. The dissent did not see the stipulation to use a specific physician as binding in light of the Babbitt decision and the employer’s ability to use MPNs.

In sum, the differing of opinion weighing the importance of the physician-patient relationship versus the importance of employer control with an MPN is an ongoing dilemma that must be assessed by all participants in California’s workers’ compensation scheme.

Read the Shawl noteworthy panel decision.

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