So, dear readers, what can Alex (or any defendant) do to argue that the proper access standard, when an applicant wants to designate a particularly specialty for a primary treating physician, is 30 miles, rather than 15?
The first line of attack is to challenge the specialty designated. Why do we need a chiropractor to be the primary treating physician on a psyche claim? Or an eye injury? We’ve seen one panel case where a Chiropractor QME was allowed to offer opinions on spinal injuries and a psyche claim, but for the purposes of a primary treating physician, how is the specialty to be selected?
Labor Code section 4616.3(d)(1) specifically requires the “[s]election by the injured employee of a treating physician and any subsequent physicians shall be based on the physician’s specialty or recognized expertise in treating the particular injury or condition in question.” Accordingly, Alex and his client might be able to survive a challenge to the MPN on the sole basis that a pain medicine physician may not be appropriate in a particular case. Once past this threshold, however, we are left with the fact that the legislature recognized that almost every physician is going to be either a specialists of some sort, or have “recognized expertise in treating the particular injury or condition in question.” In other words, it is not appropriate for the applicant to select a physician as PTP that will simply manage the specialists and have nothing to offer in treating this particular injury him or herself.
A common argument from applicant attorneys, and one that appears to be persuasive to some WCJs and commissioners, is that neither pain management physicians, nor chiropractors, are “specialists” as contemplated by regulation 9767.5(a)(1). A surgeon specializing in hand surgery might be a specialist, but chiropractors and pain management physicians are just PTPs, and so there must be 3 of each within 15 miles of applicant’s home or workplace.
However, if you ask the doctors themselves whether they are specialists, they will shout it with pride from the mountain tops! The California consolidated licensing website, BREEZE, allows you to look up a physician and list his or her area of practice and any board certifications that are relevant. The physician’s website itself will typically laud the “specialty” of the physician, which will only be bolstered by Board certification in a particular field such as pain management or even in chiropractic medicine. These physicians will tell you themselves that they worked hard, focused on a field, and obtained certification in a particular specialty. THEY ARE SPECIALISTS!
Finally, section 9785 specifically defines a primary treating physician as “the physician who is primarily responsible for managing the care of an employee, and who has examined the employee at least once for the purposes of rendering or prescribing treatment and has monitored the effect of treatment thereafter.” Accordingly, if a defendant is prepared to offer three physicians, of any specialty “to treat common injuries experienced by injured employees” within 15 miles or 30 minutes of the employee’s home or workplace, that should be enough. When the injured worker says “these guys aren’t what I need… I need someone who specializes in X; give me three of those to choose from” then the defense should be entitled to 30 miles.
Some readers have graciously provided other suggestions:
Trying to focus on “30 minutes” rather than “15 miles” and establishing that the injured worker could travel 22 miles in 30 minutes. This is doable, but might be hard to establish with issues such as traffic, speed limits, etc.
Other readers have suggested that the regulations should be amended to specifically define which “fields” (to avoid using the word “specialties”) are general PTPs (family law, occupational medicine, internist, GP) and which would be considered specialists. That way, when creating and maintaining an MPN, the employer and/or insurer would know which holes to plug.
There’s more to come on this, dear readers, because the MPN is a hard-earned tool for defendants to keep care standards high while care costs low. Your humble blogger submits that maintaining a 30-mile radius (rather than 15) for access to specialists, including pain management and chiropractic medicine, is worth fighting for (and helping your friends fight for as well).
Have a good weekend!