The Defendant’s Burden of Finding a Treating Physician
Let’s say applicant has managed to wring an award of permanent total disability out of the defendant-employer. Future medical treatment is, of course, included. The defendant wisely established a Medical Provider Network under California Labor Code § 4616, and the applicant’s treating physician is within this network. What’s the problem? Glad you (mentally) asked…
Applicant, after a few years of treatment, receives a phone call from her primary treating physician’s assistant. The assistant explains that the PTP is no longer taking workers’ compensation cases.
The applicant calls her lawyer who calls the defendant who gets to work finding a new PTP for applicant. Why is the defendant heading up the search? Because Labor Code § 4600 says that “[m]edical … services … shall be provided by the employer.”
After several months of phone calls and searching, it appears that applicant’s (former) PTP was not the only one – none of the physicians in defendant’s otherwise valid MPN are taking workers’ compensation patients.
Before too long, defendant’s adjuster is staring at applicant’s declaration of readiness to proceed and the “present issues” field has the box “other: penalties” clearly checked.
These are the essential facts of Rodriguez v. Pea Soup Andersen’s Best Western (2011), a recent Workers’ Compensation Appeals Board case addressing the issue of who bears the burden of finding a physician for applicant.
The WCAB ultimately found that defendant’s MPN was defective in that there was no physician within applicant’s geographic area willing to treat her. As such, defendant was obligated to pay for a PTP of applicant’s choice outside of its MPN.
Regarding penalties, the WCAB held that defendant had made reasonable efforts to find a physician for applicant, and that no unreasonable delay had occurred.
Ultimately, this case stands for the point that an MPN is, unfortunately, not a static thing but a creature that changes and grows this the seasons. In order to retain the protections of the MPN, much like retaining the protection of a camp-fire in the outdoors, the MPN must be fed and tended to with regular maintenance.
If State Compensation Insurance Fund can restrict its doctors’ abilities to prescribe compound drugs, perhaps a contract clause regarding notification should be included as well?
When an MPN doctor stops accepting workers’ compensation patients, that doctor should notify the insurer so that a replacement doctor could be found while other doctors are still accepting workers’ compensation patients.
Even with this limitation, MPNs remain a great tool for protecting the applicant from unnecessary treatment and overmedication while also protecting the insurer’s reserves from being sucked dry. But, as with all great things in life, their continued benefits require continued vigilance.