And so it was in the world of California workers’ compensation defense, as the voices of joy and celebration were silenced by the Court of Appeal on May 29, 2012.  And, what historians would one day call the “Valdez bubble of sanity” came to an end.

In a (mercifully unpublished) opinion, has reversed the Workers’ Compensation Appeals Board in the Valdez case, and ruled that extra-Medical Provider Network reports are admissible.  The Court of Appeal does not address who pays the bills in these cases, so presumably the en banc decision in that regard still holds – if the applicant wants non-MPN treatment and reports, the applicant can pay for them.

The Court of Appeal purports to effect the Legislative intent, but your cynical and doubtful blogger can’t help but wonder why the Court of Appeal thinks that the Legislature intended to force the defense into the panel QME system, while allowing applicants to retain their own QMEs as was the case before the SB-899 reforms.

After all, isn’t the unrestrained choice in treating physicians, without allowing any sort of control on the part of the defense, effectively allowing applicants to retain a PQME?

In its reasoning, the CoA notes that “[i]t does not make sense, however, to construe section 4616.6 as a general rule of exclusion, barring any use of medical reports other than those generated by MPN physicians.”   But that’s what Article 2.3 does – it specifically lists the manner in which treatment may be obtained – through an MPN physician, dispute resolution through an independent medical review, or case-by-case exceptions for when a certain specialty is not within the MPN.  The legislative scheme appears to be fairly adamant about limiting expert-shopping, both on the treatment front and in the medical-legal process.

The CoA also relies on the reasoning that section 4062.3 allows the parties to submit treatment reports to the panel Qualified Medical Evaluator (“[a]s the Legislature permitted the parties to submit non-MPN medical reports to the qualified medical evaluator, there is no basis to infer a legislative intent to preclude their use in other proceedings.”)  But, again, Labor Code section 4062.3 must be read in the context of the entire reform, which precludes non MPN reports except in very specific circumstances.

Fortunately, this is an unpublished decision.  So, in subsequent cases, when your eager defense attorney cites to the en banc panel opinion in Valdez, the record will not support a citation to the Court of Appeal decision reversing it or its reasoning.  Unfortunately, we can expect another Valdez decision from the WCAB shortly that will be citable and will be, more or less, in line with Court of Appeal decision.