An interesting thing happened over the weekend.  A neighbor knocked on your humble blogger’s door and invited me to a pot-luck later that evening.  As I was telling him that I have to check my calendar, the neighbor proceeded to enter my home and start helping himself to my fridge and food.  I looked at him shocked, and he said, “What? Haven’t you ever been to a pot-luck?”

Now, if he would have limited himself to the fruit in the fruit bowl, I would have written that off as basic host duties.  But going into my fridge?  Tsk. Tsk. Tsk.  Even the Labor Code, as broken as it is, has enough sense to prevent such behavior.  Haven’t you heard of the recent Kim case?  Good thing you read this blog…

As well all know, the defendant has 90 days from notice of injury to deny or accept it while it conducts an investigation (See Labor Code section 5402).  However, during that investigation period, the defendant is still on the hook for medical treatment, up to $10,000.  (See Labor Code section 5402(c)).

But, does the applicant have to treat within the MPN during this 90-day pre-denial/acceptance period?

A recent “significant panel decision,” Eun Jae Kim v. B.C.D. Tofu House, Inc., addressed this very point.

Applicant filed an application on September 9, 2013, and was provided with an MPN information package.  There was a delay notice sent on September 30, 2013, and defendant selected an MPN physician was selected to make an initial evaluation.

At an expedited hearing, set in response to defendant’s Declaration of Readiness to Proceed to Expedited Hearing, the defense sought an order requiring the applicant to treat within the MPN and absolving the defense of any liability for the non-MPN physician bills.

However, the matter was taken off calendar because this issue was not one of the four listed in California Code of Regulations section 10252, because the injury had not yet been accepted and was still in the 90-day waiting period.  In short, the WCJ held that an expedited hearing was inappropriate while the case was still within the 90-day investigation period of Labor Code section 5402.

Filing for removal, the defendant argued that it had the right to use the expedited hearing procedures to force an applicant into the medical provider network.  Although it ultimately dismissed the case as moot, the WCAB agreed.

Labor Code section 5502(b)(2), amended as part of SB-863, specifically allowed an expedited hearing to be set on the issue of “[w]hether the injured employee is required to obtain treatment within a medical provider network.”  Accordingly, any restrictions section 10252 purports to place on section 5502(b)(2) would thereby be invalid, as the Labor Code trumps regulations, every time!

So, what’s the take-away from this?  During the 90-day delay period, the employer can still have medical control AND can use the expedited hearing calendar to force the employee into the MPN.

Now, bear in mind, the employee has a really easy way to get around this: actually self-procure.  But, as discussed in Valdez, the employee needs to intend to self-procure for this to be self-procured treatment.  So, for example, the employee needs to pay immediately, or set up a payment plan.  If the employee just says “I want to self-procure, now send the bills to my employer” that’s not self-procuring, and Valdez would (presumably) render these reports inadmissible and the services non-billable to a defendant with a valid MPN.