Welcome back from your weekend, dear readers. As your humble blogger started to go through workers’ compensation withdrawals, itching to get back to denying benefits, a dear friend tried to soothe my agitations with the helpful comment: “Hey, there’s always a light at the end of the tunnel.”
Well, good old Alex was right, but often enough, the light happens to be a train.
My beloved readers will recall, no doubt, my post on the Cerda matter, where a WCAB panel held that an applicant can treating with any physician within a defendant’s MPN at any location, so long as the physician him or herself is listed as being part of the MPN. Since that case, a host of others followed with a similar result.
So, what was that humble blogger’s rant about earlier? With the tunnels and the lights and what small children and young-at-heart adults refer to as “choo-choos”?
Submitted for your consideration, the writ denied case in the matter of Ayers v. San Diego Unified School District, in which the Workers’ Compensation Appeals Board, adopting the WCJ’s opinion and reasoning, denied reconsideration of the finding that an injured worker is limited to the physicians listed at the listed location, and not at every location a listed physician may treat or affiliate.
The facts of the Ayers case are actually pretty good – an (admittedly) injured worker selected an MPN physician and wanted to receive treatment at that physician’s non-listed location. However, the MPN printout reflects that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.” Nevertheless, the injured worker selected a treatment location that was farther away from applicant’s residence than three other treatment locations in the same specialty.
At an expedited hearing, the WCJ held that the MPN website provided adequate notice that an applicant could only treat with the listed physicians at the listed location. On applicant’s petition for reconsideration, the defense raised the argument that, under Labor Code section 4616(d), “[i]n developing a medical provider network, an employer or insurer shall have the exclusive right to determine the members of their network.”
The WCJ’s report placed special emphasis on the fact that the applicant was made abundantly aware of which physician (and which location) was within the MPN, and which was not. Additionally, the WCJ specifically held that the Cerda decision, as discussed above, was distinguishable because the public was not placed on special notice (by a similar disclaimer) that the physician selected by the injured worker there was only in the network at that particular location. The Court of Appeal denied review.
So, you’re probably saying to yourself right now “I think they gave me decaf by mistake…” Otherwise, you’re probably thinking to yourself (because, unless you accidentally drank decaf coffee instead of regular, there’s no excuse to talk to yourself out loud, or so your humble blogger is repeatedly reminded by friends, family, and certain members of the medical community) “where’s the train? That sounds like an actual light.”
There’s about a dozen panel decisions or so out there with a similar holding to Cedra, although your humble blogger will let applicants’ attorneys do their own leg work in finding them. By contrast, the WCAB’s opinion in the case of Tabak v. San Diego Unified School District comes to the same conclusion as Ayers.
What we’re seeing, effectively, is a growing split in the panel authority. Once there is an adequate split in the panel authority, the Court of Appeal (or an En Banc panel) gets involved, and then the Workers’ Compensation community finds itself in the shoes of a man walking down a dark tunnel – blind, scared, and unsure if the light at the end of the tunnel is the sun or a train.
In the meantime, dear readers, I suggest we follow the example laid out in Tabak and Ayers, and update all of our MPN websites to reflect that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.”