How does a defendant prove that it sent the proper notices in compliance with Knight, and when exactly will it be liable for treatment procured outside of the MPN?
There have been several cases as of late addressing MPN issues. Specifically, there has been Knight v. United Parcel Service (2006) 71 Cal.Comp.Cases 1423 (Appeals Board en banc) where it was held “that an employer or insurer’s failure to provide required notice to an employee of rights under the MPN that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee.” And, more recently, there has been Valdez v. Warehouse Demo Services (2011) 76 Cal.Comp.Cases 330 and 76 Cal.Comp.Cases 970 (Appeals Board en banc), where it was held where there has been unauthorized treatment obtained outside a validly established and noticed MPN, reports from the non-MPN doctor are inadmissible and defendant is not liable for the cost.
The question that often arises is how does a defendant prove that it sent the proper notices in compliance with Knight, and when exactly will a defendant be liable for treatment procured outside of the MPN?
Recently, a panel of commissioners with the Workers’ Compensation Appeals Board (WCAB) addressed these issues. In Clifton v. Sears Holding Corporation, [free access], the Workers’ Compensation Administrative Law Judge (WCJ) found that applicant’s injury resulted in temporary disability for the period February 11, 2011, to the present and continuing and that applicant is entitled to reimbursement of self-procured medical treatment. On Reconsideration, defendant contended the WCJ erred in awarding reimbursement for self-procured treatment and temporary disability indemnity based on the reporting of Dr. Edward Komberg, D.C., citing the Appeals Board’s en banc decisions in Valdez and arguing that defendant had a properly established and noticed medical provider network (MPN).
The underlying facts in Clifton were that applicant initially treated with a doctor within defendant’s MPN, Dr. Giacobetti, who examined applicant on February 10, 2011. Dr. Giacobetti recommended further care and described work restrictions. Applicant then began treating with Dr. Komberg, a non-MPN chiropractor, on February 11, 2011. He found her temporarily totally disabled from February 11, 2011 through continuing and recommended further care. Based on Dr. Komberg’s opinion, the WCJ found that applicant was temporarily totally disabled. Based on the reports of Dr. Komberg and Dr. Giacobetti, he found applicant entitled to further medical treatment. As to the self-procured treatment, the WCJ found that the record contained insufficient evidence of a properly established MPN. He further found that it contained insufficient evidence of appropriate notices being sent to the applicant.
In addressing the defendant’s petition for reconsideration, the panel emphasized that the Knight case does not stand for the proposition that the employer or insurer is responsible for all treatment outside of the MPN where all of the appropriate notices have not been sent out. There must be, according to the panel, a neglect or refusal to provide reasonable medical treatment. That panel observed:
We did not hold in Knight that every violation of MPN notice requirements constitutes neglect or refusal to provide reasonable medical treatment. The WCJ misstated the law when he said on page 4 of his Report, “Per Knight, an employer neglects and refuses to provide medical treatment by failing to provide required notices of MPN rights.” Without a determination that defendant’s failure to give proper notice constituted neglect or refusal to provide reasonable medical treatment, applicant is not entitled to reimbursement for the cost of self-procured treatment.
The panel then addressed the WCJ’s analysis of the evidence. The panel noted that the WCJ did not specifically explain how defendant failed to provide the appropriate notices. Though defendant provided evidence that it provided the notices, the panel was concerned about the WCJ’s assessment that the notices alone were not enough. As noted by the commissioners:
Contrary to the implication in the WCJ’s Report, defendant is not required, as part of its burden, to offer witnesses to testify that applicant received the notices addressed to her, or to obtain a stipulation from applicant that she received them. Defendant met its initial burden by offering proof of the notices. Applicant did not testify or offer any other evidence that she did not receive them.
Finally, the commissioners rejected the applicant’s “hyper-vigilant” interpretation of defendant’s burden of proof on these issues and observed:
While defendant is not correct in stating that an MPN is “presumed” to be properly established, a defendant’s burden is certainly less onerous than applicant argues. The list of MPNs approved by the Division of Workers’ Compensation is available on the AD’s Web site, and a WCJ may simply take judicial notice of the inclusion of a defendant’s MPN on that official and publicly available list…In short, a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPNs on the ADs Web site, and by offering unrebutted evidence that it provided the required notices.
In Clifton, the commissioners describe a very straight-forward approach to proving that a validly established MPN exists and that the required notices were provided. As pointed out by the commissioners, defendant need only ask the judge to take judicial notice of the MPN Web site and offer the notices as exhibits at trial. Witnesses need not be called to authenticate or explain anything. A few simple documents should be all that a defendant has to produce.
Like the WCAB panel in Clifton, the panel in Zarco v. Alldrin Orchards, Inc. [free access], applied the holding in Knight to analyze whether defendant was liable for medical treatment self-procured by the applicant outside defendant’s MPN. In Zarco, the applicant suffered injuries to his right leg, neck, back, and abdomen while working as a farm worker on June 22, 2010. After initially receiving treatment at Oak Valley Hospital and at Work Wellness, Applicant began treating outside defendant’s MPN with Dr. James Amato. As opposed to the applicant in Clifton, who initially treated within the defendant’s MPN and followed MPN procedure prior to seeking outside treatment, there was no indication that the applicant in Zarco ever treated with an MPN physician.
On November 12, 2010, defendant sent a letter in English and Spanish to the applicant, stating as follows:
Zenith Insurance Company implemented the Zenith Medical Provider Network (ZMPN) on February 1, 2005. The ZMPN is a customized network of physicians, hospitals, outpatient facilities and ancillary services that covers the entire State of California. The goal of the ZMPN is to provide you with access to quality medical care to ensure your recovery and safe return to work. Zenith will pay all approved medical care that is reasonable and necessary and supported by evidence based guidelines for physicians in the ZMPN.
We have received notice that you have chosen to treat with Dr. Amato. This provider is NOT a member of the ZMPN. At this time, we can neither authorize treatment nor provide disability payments based upon reporting from this provider. We have advised Dr. Amato that Zenith will not be remitting payment for your medical care unless they are a member of the ZMPN.
To assist you in finding a provider who is a member of the ZMPN:
Please notify Zenith of the name of the ZMPN provider you have selected and the date of your initial appointment.
Notwithstanding this letter, the WCAB panel determined that defendant failed to provide the applicant with adequate notice of his MPN rights so as to bring his treatment into the MPN, because there was no evidence that (1) defendant provided MPN implementation notice at the time the MPN was implemented, at time of the applicant’s hire, or at the time of applicant’s injury pursuant to Labor Code § 4616.3 and 8 Cal. Code Reg. §§ 9767.6 and 9767.12, (2) the applicant received notification of defendant’s MPN and how it worked, that applicant received notification of defendant’s continuity of care policy or that applicant received a determination with regard to his injury, (3) defendant arranged an initial medical evaluation within one day of applicant’s report of injury and began to provide treatment, or (4) defendant notified applicant of his right to be treated by an MPN physician of his choice after his first treatment visit and of his right to second and third opinions regarding diagnosis and treatment plans. (See Valdez v. Warehouse Demo Services (2011) 76 Cal. Comp. Cases 330 (Appeals Board en banc opinion).) Moreover, the WCAB noted, while transferring ongoing care into an MPN is possible, there was no proof in the record that defendant made a proper attempt to transfer the applicant’s care into its MPN pursuant to 8 Cal. Code Reg. § 9767.9.
Based upon its finding that defendant failed to provide proper MPN notification and because defendant did not properly seek to transfer applicant’s care into its MPN, the WCAB held defendant liable for reasonable self-procured medical treatment obtained by the applicant with Dr. Amato.
Hopefully, with the guidance provided by cases such as Clifton and Zarco, the navigation through some of these MPN issues will become a little easier.
© Copyright 2012 LexisNexis. All rights reserved. This article will appear in an upcoming issue of California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).
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