The wait for a ruling in Valdez is over.
The California Court of Appeal, Second District, Division 7 has spoken in Elayne Valdez v. WCAB and Warehouse Demo Services [unpublished] [subsequently certified for publication June 18, 2012]. The Court reversed a WCAB holding that precluded use of reports from non-MPN treating physicians under all circumstances.
In Valdez the worker treated briefly with MPN physicians but was thereafter directed by her attorney to a non-MPN physician.
The circumstances as to whether the carrier had met its MPN requirements remains unclear. As the Court of Appeal noted:"Whether petitioner was actually informed of the MPN and the need to treat with physicians who were a part of the MPN are therefore contested issues. In light of our disposition of the petition, however, we need not address and resolve these issues; they remain to be resolved on remand."
In reaching its decision the Valdez court focused on Labor Code 4616; deciding that:"We conclude that the rule of exclusion laid down by section 4616.6 applies only when there has been an independent medical review performed under the authority of section 4616.4. We therefore annul the decision of the WCAB and remand with directions for further proceedings that are consistent with this opinion."
The Court reaffirms that :"If the Legislature intended to exclude all non-MPN medical reports, the Legislature could have said so; it did not."
Further, the Court of Appeals says:"The WCAB noted that, as in Tenet, the employee was not free to ignore the dispute resolution mechanisms of sections 4061 and 4062. However, as is apparent, Tenet does not support the conclusion that “[a]ccordingly, the non-MPN reports are inadmissible to determine an applicant’s eligibility for compensation.”The statutory scheme does not exclude from consideration medical reports prepared by non-MPN physicians, but in fact provides that medical reports prepared by the employee’s treating physician may be submitted to the qualified medical evaluator. There is no statutory requirement that the employee’s treating physician be part of the employer’s MPN. Rather, the statute provides that medical records “relevant to the determination of the medical issue” may be provided to the qualified medical evaluator. "
Moreover, the Court notes:"Our conclusion is buttressed by the employee’s undoubted right to contract with physicians of his or her choice. A rule excluding medical reports by such physicians for the sole reason that the report was not prepared by an MPN physician would eviscerate the right guaranteed by section 4605."
Technical statutory interpretation questions aside, what does this mean as a practical matter?
There are cases where, for a variety of reasons, workers treat outside the MPN. To exclude reports in many of those cases would be to ignore important information on diagnosis and treatment progress.
After the WCAB issued its opinion in Valdez I had noted that the rule it enunciated was overly harsh and unlikely to withstand scrutiny.
That has now come to pass.
But if attorneys seeking to take "medical control" and doctor mills see this case as a green light to circumvent MPNs, I think they misread the case. Reports from non-MPN physicians may be admissible in proceedings and reviewable by QMEs/AMEs but whether the non-MPN physician will be paid is another matter. So I would not read Valdez to say that attorneys can routinely "take control" by circumventing a validly noticed and maintained MPN.
But there's a fine line there if non-MPN reports are admissible. So the case goes back to the WCAB on the MPN issues.
This blog originally appeared on WorkersComp Zone. Reprinted with permission.
Herlick, California Workers' Compensation Handbook, 2012 Edition (LexisNexis)
Editors-in-Chief: Julius Young, Esq., Richard Jacobsmeyer, Esq., Barry D. Bloom
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Dear Julius, I enjoyed reading your articles concerning the Valdez case. However, I think it should be emphasized that at present there is no citable case law concerning the issues raised in the case. As you note, the Court of Appeal opinion is not certified for publication. As a result, it"…must not be cited or relied on by a court or a party in any other action" pursuant to California Rules of Court, Rule 8.1115(a). The Court of Appeal opinion does serve to overrule the en banc decisions of the Workers' Compensation Appeals Board and they are no longer citable either, except as to "law of the case" in the Valdez case itself. Therefore, excluding the specific parties in Valdez, and only as to that case, there is no citable case law authority on the subject of admissability, and for what purpose, of non-MPN medical reports when there is a properly noticed and functioning MPN. I suspect that a request, or possibly multiple requests, will be made that the Court of Appeal reconsider and certify the case for publication. That request may be made by "any person" within 20 days of issuance of the original unpublished decision under California Rules of Court, Rule 8.111(a) 1-3. In addition, there is always the possibility of a petition for rehearing before the Court of Appeal under California Rules of Court, Rule 8.268, or for a hearing in the Supreme Court. At this moment, It is important to emphasize that legally the Valdez holding is not a "done deal" and in fact, really means that the Workers' Compensation Appeals Board is back to square one. In the absence of certification, on remand the Board will be required to follow the Court of Appeal opinion in the Valdez case itself, and the parties will then be free to begin the appeal process again. –Kenneth B. Peterson
The 2nd DCA published the case on June 18, 2012.