WCDefenseCA

Hello, dear readers!  The clouds have parted, if only temporarily, the birds are with song, and your humble blogger appears as invited into your e-mail in-box with a new blog post.

Like the little rays of sunshine which, even now, grace the windows of your office which you can occasionally see between the stacks of files, now comes a little bit of good news in the workers’ comp world.

I bring you the panel case (writ denied) of Avila v. Barrett Business Services.  Therein, applicant was treating within the medical provider network, and then suddenly stopped, jumping outside of the network.  Of particular interest was the fact that he had two claims – one for a cumulative trauma, and one for a specific injury.  The former was denied and the latter accepted.

Well, applicant’s counsel attempted to use this fact to block an expedited hearing on the matter.  Pursuant to Labor Code section 5502(b)(2), defendant sought to force applicant back into the MPN, filing for an expedited hearing.  Applicant, however, argued that this matter could not be set for an expedited hearing, because the cumulative trauma claim was denied, and therefore it was inappropriate to have an expedited hearing.

The WCJ held, however, that the whole point of section 5502(b) and the SB-863 amendment was to allow these issues to be decided promptly before “large self-procured bills were run up.”  Accordingly, even when there are other denied cases, it is appropriate to decide expedited hearing issues on the admitted cases.

More importantly to the case, however, was whether applicant had the right to treat outside of the MPN.

The main sticking point in the argument was that the defense had provided an MPN printout as a courtesy at some point after applicant began treating.  He eventually selected a doctor that was in the MPN, and yet was not on the printout (the record is unclear as to how this happened).

Applicant continued treating with this invisible, yet MPN-friendly doctor, throughout the life of his claim, until he suddenly stopped.  His testimony, however, revealed that he was happy with his MPN physician, and only changed treating physicians on the advice of his attorney.

Now, your humble blogger is not familiar with the applicant’s firm in this case, so he is hardly able to report the reason for this advice.  It may have been that the good doctor’s bedside manner far outpaced his ability to treat well or write effective workers’ compensation reports.  On the other extreme, it could have been that he was unlikely to provide reports that would have indicated greater permanent impairment and need for treatment.

If we all rack our brains, I’m sure we can think of one or two attorneys that would happily pull their client away from a solid, respectable, and effective treating physician (and thereby pull their client off the road of recovery) to stick them with some quack with a license that’s one more incompetent act away from suspension, but will find endless compensable consequences and work restrictions.  Sure, the applicant will be maimed and never work again, but if he returned to full duty and didn’t need much more treatment, how would the applicant’s attorney get paid?

The WCJ ultimately ruled that the language of Labor Code section 4616.3 (“[t]he employer’s failure to provide notice as required by this subdivision or failure to post the notice as required by Section 3550 shall not be a basis for the employee to treat outside the network unless it is shown that the failure to provide notice resulted in a denial of medical care”) militates against allowing applicant out of the MPN.

The bottom line is, that medical treatment is not a pawn to be moved around the chess board, and treating it like some petty game piece is unacceptable.  The injured worker was happy with his doctor and should have stayed with him.

Have a nice weekend!