California: W.C.A.B. Rules Expedited Hearing Available Remedy to Enforce MPN During 90 Day Delay

The Workers’ Compensation Appeals Board has issued its first published decision of 2014 with a significant panel decision* in the case of Eun Jae Kim v. B.C.D. Tofu House; Cypress Insurance Company. In this decision the WCAB addresses the question of whether an expedited hearing pursuant to Labor Code § 5502(b) can be held to compel an injured worker to treat within the employer’s Medical Provider Network during the period of treatment being provided pursuant to Labor Code § 5402(b) (90 day investigation period).

Ms. Kim filed an Application for Adjudication of Claim claiming injury while employed by defendant Tofu House. The indications in the file are there was some confusion over coverage however Berkshire Hathaway Homestead Company on behalf of Cypress Insurance delayed acceptance of the claim but immediately provided applicant with an MPN package and scheduled a medical examination for her with a physician within the MPN. However Ms. Kim’s counsel selected a physician outside the MPN to provide treatment and the injured worker started treating with that physician.

Defendant promptly filed a Declaration of Readiness to Proceed seeking an order from the WCAB to compel the applicant to treat within the medical provider network during the period the file was under investigation.

At an Expedited Hearing set for November 13, 2013 the trial judge ordered the matter off calendar on the basis that the case was not admitted and therefore it was not eligible for Expedited Hearing. The WCJ supported his decision not to proceed with the Expedited Hearing based on Court Administrative Rule 10252 which provides allows an Expedited Hearing on the issue of the employee’s entitlement to medical treatment pursuant to Labor Code § 4600 when an injury to any part or parts of the body is accepted as compensable by the employer. The trial judge reasoned this Rule precluded an Expedited Hearing where injury was delayed.

The WCAB in its decision disagreed although procedurally it dismissed the petition for Removal filed by defendant since the 90 days by that time had passed and the issue of an Expedited Hearing during the delay period was moot. The Board however proceeded on a Petition for Removal on its own motion in order to rule on the issue.

The WCAB noted Labor Code § 4616.3(a) requires a defendant to provide treatment within the MPN when the employer receives notice of an injury from the employer even if the claim has not been accepted or denied and it is within the 90 day period allowed by Section 5402(b). The Board had no difficulty with determining that Labor Code § 5502(b)(2) and Administrative Director Rule 9767.6(c) made an Expedited Hearing available to the defendant to request the provision of medical treatment during the period of dispute.

“It is apparent from the plain language of Section 5502(b)(2) and Administrative Director Rule 9767.6(c) that an expedited hearing is available to address the provision of medical treatment through an MPN during the 90 day period described in Section 5402(b), and that this applies even if the employer has not accepted liability for the claim as described in Court Administrative Rule 10252.”

In effect, the Board determined that the court administrative rule was not the exclusive as to when an Expedited Hearing could be sought and that both the statutory provision and the administrative director’s rules provided an additional availability for an Expedited Hearing.

“We conclude that the WCJ erred in determining that the case and the MPN issue raised by defendant were “not appropriate” for Expedited Hearing on November 13, 2013. However, we dismissed defendant’s petition as moot because the 90 day period allowed by Section 5402(b) has elapsed, and there is no appropriate remedy we can provide at this time. Instead, the case is returned to the trial level where any issue regarding defendant’s obligation to provide medical treatment can be addressed in light of its correct status.”

COMMENTS AND CONCLUSIONS:

This issue is potentially significant in that not only will defendants have better control of medical care within their medical provider network during the first 90 days but on most cases where an employee’s claim is ultimately accepted it will not be necessary for the employer to engage in the transfer of care protocols to bring an employee back into the medical provider network. Employer could not enforce its medical provider network rights during the 90 day investigation employees would be free to seek medical treatment outside the medical provider network without the ability of the employer to enforce their right to provide treatment within the network (as allowed by statute) and additional time and resources would need to be brought to bear to transition employees back into the medical provider network once a claim was accepted. Since overwhelmingly cases which report on delay end up being accepted it makes sense for both continuity of care as well as provision of medical treatment pursuant to the Labor Code provisions under 4616, etc. that the employer’s MPN rights be respected.

This is an obviously very limited issue however having the ability to compel an employee to treat within the medical provider network may help to avoid this issue coming up in the first place. If defendants are aggressive in asserting their MPN rights, make certain that the employee has been given notice of their right to receive treatment within the MPN during the investigation phase, an appointment is set by the employer if an employee refuses to cooperate with the receipt of medical treatment not only would the employer not be obligated to provide medical treatment with the non MPN physician the employee would still be considered as within the MPN and should the claim be accepted the employee would be obligated to received treatment within the MPN and not undergo the transfer of care protocols.

From an employer’s standpoint it is important that when a claim is reported the employer immediately engages the employee within the medical provider network process. Employers who fail to immediately offer medical treatment, provide notice of entitlement to get treatment within the MPN may have a more difficult time utilizing this process to enforce their rights. It requires a defendant such as the carrier in this matter who immediately provided notice to the employee of their right to receive treatment within the medical provider network, place the case on delay and actually schedule the medical appointment for her initial treating physician. Under the MPN statutory provisions defendants can designate the first physician the employee is entitled to see and after that the employee may select a new physician within the network. The first physician may be critical in providing information to the employer that can be useful in determining whether to accept or reject the claim.

* Significant panel decisions are not binding precedent in workers’ compensation proceedings; however, they are intended to augment the body of binding appellate court and en banc decisions and, therefore, a panel decision is not deemed “significant” unless, among other things: (1) it involves an issue of general interest to the workers’ compensation community, especially a new or recurring issue about which there is little or no published case law; and (2) all Appeals Board members have reviewed the decision and agree that it is significant.

© Copyright 2014 Shaw, Jacobsmeyer, Crain & Claffey PC. All rights reserved. Reprinted with permission.

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