Home > Uncategorized > WCAB: 2nd Opinion Okay to Contest Discharge; Denial of 2nd Opinion NOT Denial of Care

WCAB: 2nd Opinion Okay to Contest Discharge; Denial of 2nd Opinion NOT Denial of Care

Happy Monday, dear readers!

The weekend has been kind to us all, and we are eager to get back into it: denying claims, delaying benefits, and, of course, humbly blogging.

Today’s post is on a topic oft-visited by this humblest of blogs: the total medical discharge.

As my beloved readers will recall, this issue has come up before: an injured worker receives a total medical discharge from an MPN physician, and then wants to use the “second opinion” process to contest the discharge.  But, as the WCAB has repeatedly held, a total medical discharge is contestable ONLY through the panel process of Labor Codes 4062.1 and 4062.2 and NOT through the second opinion process.

Why would an applicant prefer one to the other?  Well, back in the day, California Code of Regulations section 31.1 held that when the Medical director receives two or more panel selection forms on the same day, the party requesting the specialty of the treating physician wins, unless the party requesting a specialty other than the treating physician’s writes a persuasive argument for why a different specialty is necessary.  The inference often argued by various parties was that the PTP’s specialty should always control.

Well, that’s gone now – there is no more presumption regarding the treating physician’s specialty.  The current 31.1 directs all disputes to workers’ compensation Judges, and disputes regarding panel specialty are to be handled under section 31.5(a)(10), which requires the parties to write to the Medical Director to determine the appropriate panel specialty, without much guidance as to how this determination is to be made.  (Unless your humble blogger is misinformed, the seat for the medical director is currently vacant, so good luck with that.)

The tactic would go that you’d get a second opinion from a less conservative physician in the MPN, and then immediately use that physician’s specialty as the basis for a panel request, or to allow the applicant to change treating physicians to a more liberal specialty.

But the treating physician’s specialty no longer controls panel disputes, and the gutting of the regulation seems to suggest the legislative or administrative intent to divorce treating physician specialty from panel specialty, perhaps shifting focus to the nature of the injury and the nature of the dispute.

In any case, the recent panel decision touching on this topic is that of Fernandez v. KMART, in which a WCJ found that the primary treating physician’s total discharge report DID NOT satisfy the requirements of 9785(b)(3) because, while the PTP had released applicant with no limitations, restrictions, and provided no future medical care, he did provide that some symptoms “could be further evaluated with MRI as clinically warranted” and that she should engage in home exercise with a stationary bike, poor therapy, ice, use of knee brace and foot orthosis, and ibuprofen…”, and also failed to address one of the admitted body parts at all.

In other words, applicant doesn’t need any further medical care… but she does need further medical care.  Is that clear enough?

Applicant sought a second opinion in the MPN, although your humble blogger can easily be persuaded this was as much a tactical decision as just needing a physician to make a clear and internally consistent recommendation for further medical care.

After a hearing, the WCJ ruled that the treating physician’s report did not constitute a total discharge, and that by denying a second opinion treating physician, the defendant had denied care and applicant could now treat outside of the MPN.

However, on reconsideration, a split panel held that although the treating physician’s report was internally inconsistent, and would warrant a change in treating physicians, applicant had requested a second opinion rather than a change in PTP.  Because of the internally inconsistent report, the defendant should have authorized a second opinion physician.  However, the failure to authorize a second opinion physician did not constitute a denial of medical treatment, and thus did not justify applicant treating outside of defendant’s MPN.

One commissioner dissented, reasoning that relying on such an internally inconsistent report, even for the purposes of denying a second opinion within the MPN, constituted a total denial of care that should have allowed applicant to treat outside of the MPN.

Of interest here is that two of the three commissioners seemed to hold that a second opinion could be used to contest a total discharge… something that seems at odds with the prior holdings mentioned in the Acosta panel decision, which cited section 9785(b)(3) to say that “[i]f the employee disputes a medical determination made by the [PTP], including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth in Labor Code section 4060, 4061, 4062, 4600.5, 4616.3.”

By contrast, section 9767.7, regarding second and third opinions, limits the second opinion process to “diagnosis” or “treatment” by the PTP, which your humble blogger would submit excludes disputes related to discharge or the lack of need for ANY future medical care.

But this case should remind us that we need to carefully scrutinize the reports of treating physicians – a conclusory report is insufficient for retaining medical control.  It may be necessary to follow up with the treating physician to request a supplemental report that properly addresses any apparent internal consistencies.

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