California: A Medical Provider Network Conundrum: The Second Opinion Process

In Bautista v. Arlon Graphics, 2015 Cal. Wrk. Comp. P.D. LEXIS --, a split panel WCAB affirmed the WCJ’s finding that the applicant machine operator with a 4/6/2014 admitted industrial injury to his ribs, pulmonary system, lumbar spine, and right ankle and alleged consequential injury his psyche and sleep was not entitled to obtain a second opinion regarding his psychiatric condition in the defendant’s Medical Provider Network (MPN) pursuant to Labor Code § 4616.3 [LC 4616.3] and 8 Cal. Code Reg. § 9767.7 [R 9767.7].

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The WCAB majority found that under Labor Code § 4616.3(c) and 8 Cal. Code Reg. § 9767.7, the injured worker has the right to obtain a second opinion physician if he or she disputes either the diagnosis or treatment prescribed by the primary treating physician. Here, the applicant did not dispute the treatment for his orthopedic injury received by the primary treating physician in the MPN, orthopedist Peter Borden, M.D. He did not receive a diagnosis by Dr. Borden with regard to his claim for psychiatric injury, although Dr. Borden documented the applicant’s symptoms of anxiety. According to the WCAB majority, it is necessary for the applicant to first obtain a diagnosis from the treating physician regarding the disputed issue before there can be a basis to exercise the right to obtain a second opinion. The WCJ correctly determined that the applicant should first seek referral to a psychologist/psychiatrist from Dr. Borden, and if the referral is not provided, the applicant can obtain a second opinion about such a referral from a different orthopedic specialist in the MPN.

Commissioner Sweeney, dissenting, held that the applicant should be allowed to obtain a second opinion from a psychologist/psychiatrist as requested because, Commissioner Sweeney opined, nothing in Labor Code § 4616.3(c) or 8 Cal. Code Reg. § 9767.7 requires the injured worker to obtain a referral from a primary treating physician in order to obtain a second opinion physician. Commissioner Sweeney pointed out that it is illogical to require that the applicant select a different orthopedist in order to obtain a psychiatric evaluation when the applicant does not dispute the orthopedic care or diagnosis provided by Dr. Borden. As stated by Commissioner Sweeney, the applicant has an absolute right under Labor Code § 4616.3(c) to obtain a second opinion from the MPN physician with the education, skills, training, and experience to evaluate his psychiatric condition properly. 

Commentary:

One of the most significant changes brought about by Senate Bill 899 was the creation of MPNs. Prior to SB 899, the injured worker was allowed to select any physician he chose to treat the industrial injury. That doctor could then make whatever referrals he felt were necessary. In short, the employee controlled the medical treatment related to an industrial injury. SB 899 changed that and by mandating treatment within the employer created MPN, the employer gained the ability to control medical treatment. Post-SB 899, the employer could determine which physicians would be in the MPN and could limit the injured worker to treatment with those limited physicians.

Bautista addresses a very specific question as to how the injured worker is supposed to obtain treatment from a different specialist once he has selected the initial MPN doctor. According to the WCJ and the majority of commissioners with the WCAB on the panel, before the employee can see a physician of a different specialty within the MPN, the initial physician has to first provide a diagnosis for the secondary condition.

As the dissent in Bautista points out, this is not what the statute says. Labor Code § 4616.3(c) merely states that if the injured worker disputes the diagnosis or treatment prescribed by the treating physician, then the employee may seek another opinion from within the MPN. In Bautista, the initial MPN doctor was an orthopedist. The employee was seeking psychological treatment. According to the majority in Bautista an orthopedist has to first provide a diagnosis for a condition outside of his expertise prior to the employee being able to obtain treatment for the secondary condition. Many orthopedists asked to address a diagnosis outside of their expertise will simply refuse to do it. For those that do, what is the possible value in such a diagnosis considering the physician is providing a diagnosis for a condition outside of their expertise?

In conclusion, it appears the WCJ and majority in Bautista believe that the applicant has to first establish some sort of threshold prior to being able to obtain treatment from another physician within the MPN. Unfortunately, at least as far as their reasoning goes, there is no threshold provided for in the statute. If the judges and commissioners continue to express the opinion that some sort of threshold must first be met, this could serve as just another barrier to employees obtaining necessary treatment in an already extremely complicated process.

Read the Bautista noteworthy panel decision.

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