California: Is There a Limit on the Employer’s Control Over Medical Treatment?

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates or by the LexisNexis® editorial consultants who review panel decisions.

The appropriate provision of medical treatment is one of the most fundamental aspects of California’s Workers’ Compensation System. For many years prior to April 19, 2004, an employee was able to choose his or her own treating physician and was allowed to freely change to a different doctor if he or she chose to. The idea was that an employee had a basic right to choose his or her own doctor and, just as importantly, recognized the importance of allowing the employee to control the very personal decisions oftentimes involved with making medical treatment decisions.

As most of us know, in 2004, with the passage of Senate Bill 899, all of that changed. The employer was provided with medical control by way of mandating an employee’s participation in an employer controlled Medical Provider Network (MPN).  Not only was the employee required to go to an employer controlled physician, any treatment recommendations that the employer controlled physician recommended would be subjected to a review process called Utilization Review (UR). The employer maintained complete control over whether a treatment recommendation would be placed through UR.

A recent Workers’ Compensation Appeals Board (WCAB) panel decision reflects just how far the medical control pendulum has swung in the employer’s direction. Indeed, in Maldonado v. Beverly Hilton Hotel, Ace American Insurance ADJ5832330, a panel of commissioners concluded that a claims adjuster could hire and utilize a nurse within the context of applicant’s medical care who would insure “the efficient and responsive handling of various aspects of applicant’s medical treatment, including timely attention to medical reports and requests for authorization of medical treatment”. The employee had no say as to whether or not this nurse participated in his medical treatment.

In conclusion, while it may be true that the “nurse case manager” in Maldonado may not have been personally attending medical appointments with the employee, she was calling the employee’s treating physicians, requesting medical records and coordinating treatment with applicant’s ancillary providers. These functions are not solely the functions of a claims adjuster. To the contrary, the coordination of medical treatment is an integral part of the medical benefit itself. The panel decision in Maldonado can easily be seen as yet another illustration of a system’s failure to recognize and/or value the very personal nature of the medical treatment benefit.

Read the Maldonado noteworthy panel decision.

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