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California: Treatment Outside the Medical Provider Network

February 24, 2023 (8 min read)

A New Twist to a Perplexing Problem

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, Workers’ Compensation Appeals Board

Ever since Labor Code section 4600 was amended authorizing employers to satisfy their obligation to provide medical care to their industrially injured employees through an established medical provider network (“MPN,” see Lab. Code §§ 4600(c), 4616), there have been tensions and disputes over the scope of an employer’s medical control of treatment. One by one, the Appeals Board has resolved those disputes. For example, an employer’s refusal or neglect to provide reasonably necessary medical treatment to cure or relieve the effects of its employee’s industrial injury was held to constitute grounds for the employee to self procure medical treatment at the employer’s expense including the right to obtain treatment outside of the MPN (see, for example, Knight v. UPS (2006) 71 Cal. Comp. Cases 1423 (Appeals Board en banc)).

These early decisions were followed by new disputes and decisions concerning continuity of care, proper MPN notification and transfer of care into the MPN. In Babbitt v. Ow Jing (2007) 72 Cal. Comp. Cases 70 (Appeals Board en banc), the Appeals Board en banc held that an employer may satisfy its legal obligation to provide reasonable and necessary treatment by transferring the industrially injured worker into an MPN in compliance with applicable statutes and regulations regardless of the date of injury or the date of award of further medical treatment. By now, more than 16 years after Babbitt, supra, one would expect that such a transfer of care is a straightforward fate accompli. A recent panel decision, however, adds a new dimension to our understanding of the transfer of care into an MPN. That case is Claytor v. Alexander Latteri, M.D., 2023 Cal. Wrk. Comp. P.D. LEXIS 4, and the question it presents is whether an injured worker treating outside of an MPN with the employer’s approval can be found to have voluntarily returned to the MPN.

Background of Case

Sherrill Claytor (applicant) sustained injury to multiple body parts on June 12, 2014, while employed as an assistant by Dr. Latteri (defendant). A Stipulations with Request for Award approved on May 4, 2020 awarded applicant 34% permanent disability and further medical treatment to cure or relieve the effects of her injuries.

Applicant was treated by Dr. Spencer as her primary treating physician (PTP) from 2014 to 2019, and defendant authorized treatment recommendations made by Dr. Spencer. On September 3, 2019, applicant sent a letter to defendant designating Dr. Small as her PTP. Dr. Small provided treatment to applicant from 2019 to 2020. However, applicant also continued to treat with Dr. Spencer at least to December 2019, while simultaneously being treated by Dr. Small.

Thereafter, on June 1, 2020, applicant sent a letter to defendant requesting that she be allowed to treat again with Dr. Spencer as her PTP. In response, defendant sent a letter to applicant informing her that State Compensation Insurance (SCIF) had ended its contract with its MPN and had established a new MPN. The letter advised that as long as there was no dispute regarding designation of the current PTP, applicant can continue to treat with the PTP. However, in order to treat with a new PTP, applicant must select a physician from the MPN. The letter went on to state that applicant was being transferred into the new MPN as of July 27, 2020. Additionally, the letter stated that if the current PTP is not listed in the new MPN program and  (emphasis added) there is no dispute regarding designation of the PTP, SCIF will allow continuation of treatment with the PTP after July 27, 2020. Dr. Small was copied on the letter.

 Thereafter the parties disagreed whether applicant had the right to treat with Dr. Spencer, and a trial was held on that issue. At trial applicant testified that she did choose Dr. Small as her PTP on September 3, 2019. She explained that after that date she treated concurrently with Dr. Small and Dr. Spencer. Dr. Spencer’s job was to reintegrate applicant into the workplace. Applicant went on to testify that Dr. Small’s December 12, 2019 report states that applicant is to continue to follow up with Dr. Spencer and that Dr. Small’s reports dated January 20, 2020 and March 24, 2020 advise that Dr. Spencer will determine applicant’s temporary disability status. Further, Dr. Small’s April 7, 2020 report states that applicant should follow up with Dr. Spencer as necessary. Applicant also offered testimony regarding the re-election of Dr. Spencer as the PTP: Dr. Spencer was familiar with applicant’s condition, applicant trusted Dr. Spencer completely, and Dr. Spencer’s office is only a few miles from applicant’s home, whereas Dr. Small’s office is located 25 to 30 miles away.

Reconsideration of WCJ’s Findings

The WCJ found that applicant is permitted to treat with Dr. Spencer outside of defendant’s MPN. Defendant sought reconsideration, contending that it did not deny medical care to applicant so as to permit treatment outside of the MPN. Also, defendant claimed that the MPN transfer of care provisions (see Cal. Code Regs., tit. 8, § 9767.9) do not apply since applicant was treating within its MPN when the request was made that Dr. Spencer resume acting as the PTP.

The Appeals Board panel analyzed the regulations pertaining to the circumstances under which an employee may be transferred into an MPN for medical treatment as well as the notification procedures required when an employee with an existing injury is required to transfer into an MPN (see Cal. Code Regs., tit. 8, § 9767.12). It also cited Amezcua v. Westside Produce, 2013 Cal. Wrk. Comp. P.D. LEXIS 93; Cornjejo v. Solar Turbines, Inc., 2013 Cal. Wrk. Comp. P.D. LEXIS 479; and San Diego Unified School Dist. v. Workers’ Comp. Appeals Bd. (2013) 79 Cal. Comp. Cases 96 (writ den.) for the proposition that the employee has the burden of proof to show the employer’s neglect or refusal to provide treatment outside of the MPN or to establish that a failure to provide notice of the MPN resulted in a denial of care. The panel readily acknowledges that this matter presents a unique set of facts in that defendant authorized and provided treatment to applicant with a non-MPN physician (Dr. Spencer) for several years before applicant selected Dr. Small as the PTP, who defendant claims is a member of its MPN.

Panel’s Ruling

The panel distills the gist of defendant’s position as follows: that applicant was brought back into its MPN when she selected Dr. Small as her PTP, and that absent a denial of care she is not permitted to select a non-MPN physician as the PTP. At the outset, the panel agrees that the evidence does not indicate a denial of care by defendant; rather, it shows that defendant permitted applicant to treat with a non-MPN physician for several years and she continued to treat with that non-MPN physician even after she began to treat with Dr. Small as her designated PTP. Of significance, the panel admits that if Dr. Small is indeed within defendant’s MPN, there is a viable argument that applicant effectively returned herself to the MPN by selecting Dr. Small as her PTP, and, absent a denial of care, she may not now choose to treat with a physician outside of defendant’s MPN. But, the panel cautions, this argument presumes that Dr.Small is actually a member of the MPN. Since applicant did not concede that Dr. Small is a member of the MPN and defendant failed to present substantial evidence of such membership, the panel declined to presume that Dr. Small is in the MPN, based solely on defendant’s claim that he is. Moreover, the panel emphasizes that substantial evidence in the record does not actually show that defendant ever effectively transferred applicant’s care to its MPN and that applicant was treating within the MPN when she requested that Dr. Spencer resume his role as the PTP. Further, there is no evidence that defendant objected to applicant’s request to re-designate Dr. Spencer as the PTP. Under these circumstances, the panel affirmed the WCJ’s finding that applicant is entitled to treat outside of defendant’s MPN with Dr. Spencer as her PTP.

Although the panel decision allows applicant’s continued treatment outside of defendant’s MPN, the panel makes clear that defendant is not foreclosed from transferring applicant’s care into its MPN, provided it complies with the statutory and regulatory requirements for transfer of care and continuity of care policies. Briefly, this requires that applicant be provided with the proper MPN notice (Cal. Code Regs., tit. 8, § 9767.12; Lab. Code § 4616.3(b)). The transfer of care rules require that defendant determine whether applicant has a condition that would allow completion of treatment with the PTP. (See Cal. Code Regs., tit. 8, § 9767.9(f))


While it is true that the Sherrill decision is simply a panel decision and not binding authority, the import of its analysis and holding should not be discounted. The unanimous panel reminds us that every Appeals Board decision must be based on substantial evidence in the record. The facts presented in the case make a strong suggestion that Dr. Small is a member of defendant’s MPN and applicant availed herself of treatment within the MPN when she designated Dr. Small as the PTP and began to treat with him. But suggestions and implications are not facts. Neither a WCJ nor a panel will presume an allegation to be correct, absent proof to substantiate the claim. With that reminder, the panel concludes its analysis by providing a roadmap of the requisite steps that a defendant must follow to return an injured worker to an MPN.

Reminder: Panel decisions are not binding precedent.

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