WCDefenseCA

California Code of Regulations section 9767.5 lays out the “access standards” for a Medical Provider Network.  Among those standards is the distance or travel time requirement of a treating physician – “A[n] MPN must have a primary treating physician and a hospital for emergency health care services, or if separate from such hospital, a provider of all emergency health care services, within 30 minutes or 15 miles of each covered employee’s residence or workplace.”

So, what do you think, dear readers, does the “or” mean “or” or does the “or” mean “and”?  Now, I know that some of the applicants’ attorneys that end up here by accident are screaming at their computers right now: “It means AND! Just asking the question entitles my client to 132a damages! Medical Provider Networks are a violation of human rights!  I AM ABOVE THE LAW!!!”

As for the rest of us, I would venture to guess that the word “or” typically means the word “or” and not “and” or “ponies” or another other word.

This issue became the subject of some judicial review in the case of Miguel Robles v. Evolution Fresh Inc., which was recently denied review by the Court of Appeal.

Mr. Robles enjoyed the benefit of 3 spinal orthopedic primary treating physicians located a stone’s throw from his place of work, but only 1 from his place of residence.  His reading of section 9767.5 lead him to the conclusion that defendant’s MPN was defective.  Defendant, naturally, did not agree with Mr. Robles’ (or his attorney’s) interpretation of the law.

The matter was presented to the workers’ compensation Judge with a request for judicial guidance, and the WCJ found that the defendant was correct – “[t] the use of the conjunction ‘or’ is indicative of the use of an option for purposes of meeting the conditions of the regulation.”

The WCAB concurred and the Court of Appeal denied review.

Now, this case took place in the Los Angeles area… so the fact that the employee lived fifty miles away from his place of employ was not that unusual.  But, as an employer, can you imagine trying to have an MPN which has at least three of every type of physician within 15 miles or 30 minutes of each of your employees?  That would be unreasonable, if not impossible.

The WCAB made another point upon which all of us on the defense side should keep our sharp, hawk-like eyes – there is a conflict between section 9767.5(b) and Labor Code section 4616(a)(1).  While the former allows a choice for the employer/insurer – 3 physicians of each type 15 miles from home or residence (and conceivable, one from one point, and two from another), section 4616(a)(1) requires the provider network to “include an adequate number and type of physicians … to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed.”  (Emphasis belongs exclusively to your humble blogger).

The panel held that “to the extent [section 9767.5(b)] exceeds the scope of the statute, section 4616(a)(1) controls.”

This reasoning says that the legislature did not intend to give the employer/insurer the option of providing physicians at applicants’ residence, but only at his place of employ, and the regulation is therefore invalid as to allowing employers to provide physicians near the employee’s home instead of his job.

So, if an applicant wants out of an MPN, he need only check if there is a physician around his job site… even if every single orthopedist licensed to practice medicine sets up shop across the street from his house, if he lives more than 15 miles from where he works, the MPN is invalid… or so says the non-binding panel opinion.

There may be more developments on this theory later, but employers should beware of this argument, especially when setting up an MPN.