If today’s blog post appears to be the product of an attorney, fiercely committed to the defense of his clients, but tragically suffering from vertigo, that attorney hopes you will forgive him – one of the more recent Workers’ Compensation Appeals Board panel decisions has left his head spinning.

A little background – we all read the Breanna Clifton v. Sears Holding Corporation case where three WCAB commissioners unanimously held that “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 [Administrative Director’s] Web site, and by offering unrebutted evidence that it provided the required notices.”

It was all so simple – and now it’s not.  (Are your spider-senses tingling yet?)

In the recent case of Juan Carillo Matancias v. Milk Maid Dairy, applicant sustained an injury to his knee, when a birthing milk cow pushed him through a fence.  He was treated by a physician within the Medical Provider Network and then released from care seven months later.  At the time of the injury, applicant was provided an explanation of the MPN and a link to a website listing all of the MPN doctors.

Applicant was unhappy with being discharged to return to work and sought additional treatment from a non-MPN physician.  After the trial and conclusion of the case-in-chief, lien claimant sought to have its $15,000 bill paid by the defendant.

But the defendant had Clifton.

Raising the MPN defense to the lien, the defense had to sustain an adverse ruling from the workers’ compensation Judge who found that it is the defendant’s duty to prove the MPN is valid, even it the lien claimant does not raise it as an issue at trial, and the fact that the MPN is listed on the AD’s website is “weak sauce,” as the kids are known to say these days, without the defendant presenting that evidence at trial.

Nor did the defendant obtain relief from the WCAB, with two out of three commissioners holding that the MPN defense fails because there was no proof that defendant informed applicant, at the time of his discharge, that he could challenge the release from care or that the lien claimant was not in the MPN.

But even if we were to concede these facts, the lien claimant KNEW that it was not entitled to payment.  The lien claimant, a repeat player, built its business model around charging ahead with providing treatment, and then litigating the costs to recover payment.  After all, even without the lien claimants experience with other cases, the objection letters from the defendant came early and came often.

In any case, perhaps, dear readers, we must do the MPN dance at trial, regardless of the facts.