The California Supreme Court has finally issued its opinion in the Valdez case.  The entire Supreme Court opinion can be summed up as follows: the Legislature has amended the law, applicable to all pending and future cases, such that reports obtained from treating physicians outside of a defendant’s Medical Provider Network are admissible, but cannot be the sole basis of an award.

If that language sounds familiar, it should, because it is lifted directly from Labor Code section 4605.

In short, the injured worker can provide reports to the Primary Treating Physician or the Panel Qualified Medical Evaluator to review, but a Judge can’t issue an award solely based on this non-MPN report.

That being said, here are some arguments to take with you and give your case an edge:

1. The Court of Appeal, and now, the Supreme Court, have failed to address the WCAB En Banc ruling with respect to whether the defendant is liable for the costs of this non-MPN report.  Given the language of section 4605, it appears fairly certain that the defendant does not have to pay these bills.
2. Because the Supreme Court relies on section 4605, which provides that the employee can get a consulting or attending physician “at his or her own expense” if the employee does not pay the bills, or if the physician starts sending the bills to the insurer/employer, the reports should be excluded as simply treating outside the MPN.

Recall, if you will, dear readers, the matter of Crispin Mendez-Correa v. Vevoda Dairy, where the WCAB held that Labor Code section 4605 requires a showing of the injured worker’s intent to self-procure medical treatment.  Although non-binding authority, it is on point, and if an injured worker seeks to introduce a non-MPN report into evidence, perhaps an objection is warranted unless he or she can show that, at the time of the consultation, he or she intended to pay for the treatment out-of-pocket (and not stick the defendant with the bill).

1. Be very wary of the effect of the “sole basis” clause of section 4605.  The Legislature could not possibly be more vague in drafting such language, and it provides judges with ample lee-way in interpretation.  For example, can a WCJ reason that the biographical data recorded by the panel QME (age, weight, height, etc.) confirms the validity of the non-MPN “consulting physician” report?  When an award issues, just how much of the rational has to be based on the panel QME or the PTP?  Can a WCJ adopt the PQME’s apportionment reasoning and rely on the “consulting physician” for everything else?

   Your humble blogger does not have the answers (yet) but suspects that future panel decisions will clarify just how nice of a Trojan Horse the Legislative Greeks gave us.