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Growing Trend? MPN Physicians ONLY at Listed Locations

Welcome back from your weekend, dear readers.  As your humble blogger started to go through workers’ compensation withdrawals, itching to get back to denying benefits, a dear friend tried to soothe my agitations with the helpful comment: “Hey, there’s always a light at the end of the tunnel.”

Well, good old Alex was right, but often enough, the light happens to be a train.

'This Mouse is going to be huge!'

My beloved readers will recall, no doubt, my post on the Cerda matter, where a WCAB panel held that an applicant can treating with any physician within a defendant’s MPN at any location, so long as the physician him or herself is listed as being part of the MPN.  Since that case, a host of others followed with a similar result.

So, what was that humble blogger’s rant about earlier? With the tunnels and the lights and what small children and young-at-heart adults refer to as “choo-choos”?

Submitted for your consideration, the writ denied case in the matter of Ayers v. San Diego Unified School District, in which the Workers’ Compensation Appeals Board, adopting the WCJ’s opinion and reasoning, denied reconsideration of the finding that an injured worker is limited to the physicians listed at the listed location, and not at every location a listed physician may treat or affiliate.

The facts of the Ayers case are actually pretty good – an (admittedly) injured worker selected an MPN physician and wanted to receive treatment at that physician’s non-listed location.  However, the MPN printout reflects that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.”  Nevertheless, the injured worker selected a treatment location that was farther away from applicant’s residence than three other treatment locations in the same specialty.

At an expedited hearing, the WCJ held that the MPN website provided adequate notice that an applicant could only treat with the listed physicians at the listed location.  On applicant’s petition for reconsideration, the defense raised the argument that, under Labor Code section 4616(d), “[i]n developing a medical provider network, an employer or insurer shall have the exclusive right to determine the members of their network.”

The WCJ’s report placed special emphasis on the fact that the applicant was made abundantly aware of which physician (and which location) was within the MPN, and which was not.  Additionally, the WCJ specifically held that the Cerda decision, as discussed above, was distinguishable because the public was not placed on special notice (by a similar disclaimer) that the physician selected by the injured worker there was only in the network at that particular location.  The Court of Appeal denied review.

So, you’re probably saying to yourself right now “I think they gave me decaf by mistake…”  Otherwise, you’re probably thinking to yourself (because, unless you accidentally drank decaf coffee instead of regular, there’s no excuse to talk to yourself out loud, or so your humble blogger is repeatedly reminded by friends, family, and certain members of the medical community) “where’s the train? That sounds like an actual light.”

There’s about a dozen panel decisions or so out there with a similar holding to Cedra, although your humble blogger will let applicants’ attorneys do their own leg work in finding them.  By contrast, the WCAB’s opinion in the case of Tabak v. San Diego Unified School District comes to the same conclusion as Ayers.

What we’re seeing, effectively, is a growing split in the panel authority.  Once there is an adequate split in the panel authority, the Court of Appeal (or an En Banc panel) gets involved, and then the Workers’ Compensation community finds itself in the shoes of a man walking down a dark tunnel – blind, scared, and unsure if the light at the end of the tunnel is the sun or a train.

In the meantime, dear readers, I suggest we follow the example laid out in Tabak and Ayers, and update all of our MPN websites to reflect that “providers listed on the [MPN website] are deemed in-network providers at the listed location only and no other.”

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  1. Steve Cattolica
    September 29th, 2014 at 09:01 | #1


    So, an injured worker referred to Dr. Specialist, an independent contractor available within an MPN at ABC Healthworks’ locations, can’t choose to be seen at Dr. Specialist’s his own office unless it is listed in the MPN? And if that office is listed, do you think ABC Healthworks will allow that patient to choose Dr. Specialist’s office instead of the clinic location? Once the referral is made, whose patient is it?

    • Gregory Grinberg
      September 29th, 2014 at 09:37 | #2

      Hi Steve – thanks for the comment! The issue you raise appears to be one of contract negotiation and ripe for free-market resolution. I can think of several examples in my clients’ MPNs which have a physician as part of US Healthworks of Concentra at a location, but not at the physicians’ own offices. If the physician is willing to accept the terms of the MPN for his or her own office too, there’s no reason both can’t be listed. As for the anti-competitive instinct attributed to ABC Healthworks in your scenario, I would expect market realities and the need for skilled labor to sort out any such frictions. ABC Healthworks needs physicians, and although I’m sure ABC Healthworks would prefer to be the only game in town, it’s probably going to have to make do with what it can get.

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