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California: Two Separate Medical Review Processes Available to an MPN Treatment Recommendation

October 17, 2016 (3 min read)

By LexisNexis California WCAB Noteworthy Panel Decisions Reporter Staff

In De Leon v. Safeway, Inc., 2016 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB, reversing the WCJ, held that the request for authorization to provide medical treatment by the applicant’s MPN treating physician was subject to utilization review (UR) and independent medical review (IMR) because the Legislature did not exclude MPN treatment from those processes.

(Publisher’s Note: Citations link to Lexis Advance.)

Although the IMR determination in this case did not issue within the time specified by the Legislature in Labor Code § 4610.6(d), the validity of the IMR was not affected because it is now established, based on decision in State Comp. Ins. Fund v. W.C.A.B. (Margaris) (2016) 248 Cal. App. 4th 349, 203 Cal. Rptr. 3d 586, 81 Cal. Comp. Cases 561, that the Labor Code § 4610.6(d) time period for completion of IMR in cases like this is directory and not mandatory, and that the delay in the issuance of the IMR determination beyond the timeframe does not render the IMR invalid. Since the applicant did not establish grounds for appealing the IMR as set forth in Labor Code § 4610.6(h), the IMR determination in this case was binding.


Commissioner Sweeney concurred separately to emphasize that there are two separate statutory tracks to dispute the recommendation of the MPN treating physician, consisting of the UR IMR and the second opinion MPN IMR process, that the process triggered depends on whether the applicant or defendant objects to the MPN physician’s treatment recommendation, that the UR IMR process (applicable when the employer objects) and MPN IMR (applicable when the employee objects) are not interchangeable and are not mutually exclusive, and the regulatory and procedural requirements differ significantly for each, and that, here, because the defendant objected to the proposed treatment, the UR IMR process applied to resolve treatment dispute. See also concurring decision in Willoughby v. Hoge, Fenton, Jones & Appel, 2016 Cal. Wrk. Comp. P.D. LEXIS --.


In DeLeon v. Safeway, ADJ8338903 and Willoughby v. Hoge, Fenton, Jones & Appel; American Home Assurance Company/AIG, ADJ164815, the Workers’ Compensation Appeals Board (WCAB) concluded that the medical treatment proposed by a Medical Provider Network (MPN) physician is subject to the Utilization Review (UR) and Independent Medical Review (IMR) processes. What is most interesting about these cases, however, is the separate concurring opinions by Commissioner Sweeney.

In the concurring opinions, she discusses the separate review tracks that are available once an MPN physician makes a treatment recommendation. There is the UR/IMR process, the treatment review process that has received the greatest amount of discussion since the passage of Senate Bill 863. However, there is also a second process which can be referred to as the second MPN-IMR process.  While the first process is triggered by the employer challenging the proposed treatment, the second process is triggered by the employee objecting to an MPN treatment determination.

There is no question that the vast majority of WCAB decisions addressing the medical treatment benefit in recent years have focused on the employer’s review processes. This may be due to the fact that many employees, particularly unrepresented employees, do not have the knowledge and/or expertise to challenge an MPN physician’s treatment recommendation. Whatever the reason, panel cases like these that explain the distinctions in the different treatment review processes are a significant benefit to the workers’ compensation community.

Read the DeLeon noteworthy panel decision.

Read the Willoughby noteworthy panel decision.

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