Follow Us on:
View all Communities
Business Insight Solutions - Partner Portal
Legal and Corporate Information Professionals
LexisNexis® Legal Newsroom
New Associates - Lexis Hub
Product Sign In
Workers Compensation Law
Search All Communities
Search This Community
Select your Topic
Practice Areas and Industries
Antitrust & Unfair Competition
Banking and Finance
Constitution and Civil Rights
Consumer Protection & Privacy
Contracts and Commercial
Criminal Law and Procedure
Estate and Elder Law
Financial Fraud Law
Labor & Employment
Media & Entertainment
Mergers & Acquisitions
ACA and Health Care Reform
Fracking & Alternative Energy
Top Emerging Trends
Communities Sign In
Already a Member?
Login by Email?
Forgot Username / Password?
New to LexisNexis Communities?
Workers Compensation Law
Workers' Compensation Law Blog
California: Two Separate Medical Review Processes Available to an MPN Treatment Recommendation
California: MPN Treatment Resolution: Separate and Distinct vs. Part and Parcel
California: What Constitutes a Diminishment in a Benefit When It Comes to an ADR?
California Workers’ Comp Case Roundup (8/4/2016)
california workers compensation
california workers' compensation
Case Law Developments
course of employment
Delaware Detour & Frolic
Delaware workers compensation
Delaware Workers’ Compensation
Larson's Case Law Developments
Larson's Emerging Issues & Trends
Trends & Developments
workers compensation fraud
workers’ compensation insurance
05-31-2012 | 09:15 PM
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[unpublished] [subsequently certified for publication June 18, 2012].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
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
applies only when there has been an independent medical review performed under the authority of
. 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
, the employee was not free to ignore the dispute resolution mechanisms of
. However, as is apparent,
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
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.
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
. Reprinted with permission.
Herlick, California Workers' Compensation Handbook, 2012 Edition (LexisNexis)
Editors-in-Chief: Julius Young, Esq., Richard Jacobsmeyer, Esq., Barry D. Bloom
For more information about LexisNexis products and solutions connect with us through our
Medical Provider Networks
Valdez en banc decision
rule of exclusion
independent medical review
Terms & Conditions
Privacy & Security
LexisNexis® Legal Newsroom
Copyright © 2016 LexisNexis. All rights reserved.