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Valdez Disputes Persist

June 20th, 2014 No comments

As my beloved readers will recall, the Supreme Court ruled in Valdez that non-MPN treatment reports were admissible.  And how do we know that?  Because Labor Code section 4605, that the employee has the right “to provide, at his or her own expense, a consulting physician or any attending physicians whom he or she desires.”

Your humble blogger interpreted this as we all should – repeated bills, liens, and demands for payment by the treatment provider negate the “at his or her own expense” clause of section 4605, rendering the reports inadmissible.

Now comes the unpublished decision in Mirian Garcia v. Illinois Midwest Insurance Agency.  Therein, the Court of Appeal had suspended action until the Valdez decision issued.  Applicant had treated with several non-MPN physicians, but the WCJ had ruled those reports inadmissible.

The Court of Appeal remanded the case down to the WCAB to rule on admissibility of the previously excluded reports, and to have those admissibility decisions guided by the Supreme Court’s opinion in Valdez.

Look, certain things you have to openly, proudly, and fiercely declare to make the magic of the law work.  For example, your humble blogger is no bankruptcy attorney, but bankruptcy generally works like this:

So, if you want those non-MPN reports to be admissible, you need to say so when you’re getting the treatment.  And if the provider is sending bills to the insurer, then the WCAB defendant should point to that fact when the applicant tries to get this case squeezed back in.

Now, it’s very interesting to watch this case – how will the WCAB rule on admissibility?  Will the WCAB adopt your humble blogger’s reasoning in this case?  Let’s keep our collective ears to the proverbial ground.

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Cal Sup. Crt. on Valdez: “Please See LC 4605. That is all.”

November 15th, 2013 No comments

The California Supreme Court has finally issued its opinion in the Valdez case.  The entire Supreme Court opinion can be summed up as follows: the Legislature has amended the law, applicable to all pending and future cases, such that reports obtained from treating physicians outside of a defendant’s Medical Provider Network are admissible, but cannot be the sole basis of an award.

If that language sounds familiar, it should, because it is lifted directly from Labor Code section 4605.

In short, the injured worker can provide reports to the Primary Treating Physician or the Panel Qualified Medical Evaluator to review, but a Judge can’t issue an award solely based on this non-MPN report.

That being said, here are some arguments to take with you and give your case an edge:

  1. The Court of Appeal, and now, the Supreme Court, have failed to address the WCAB En Banc ruling with respect to whether the defendant is liable for the costs of this non-MPN report.  Given the language of section 4605, it appears fairly certain that the defendant does not have to pay these bills.
  2. Because the Supreme Court relies on section 4605, which provides that the employee can get a consulting or attending physician “at his or her own expense” if the employee does not pay the bills, or if the physician starts sending the bills to the insurer/employer, the reports should be excluded as simply treating outside the MPN.

Recall, if you will, dear readers, the matter of Crispin Mendez-Correa v. Vevoda Dairy, where the WCAB held that Labor Code section 4605 requires a showing of the injured worker’s intent to self-procure medical treatment.  Although non-binding authority, it is on point, and if an injured worker seeks to introduce a non-MPN report into evidence, perhaps an objection is warranted unless he or she can show that, at the time of the consultation, he or she intended to pay for the treatment out-of-pocket (and not stick the defendant with the bill).

  1. Be very wary of the effect of the “sole basis” clause of section 4605.  The Legislature could not possibly be more vague in drafting such language, and it provides judges with ample lee-way in interpretation.  For example, can a WCJ reason that the biographical data recorded by the panel QME (age, weight, height, etc.) confirms the validity of the non-MPN “consulting physician” report?  When an award issues, just how much of the rational has to be based on the panel QME or the PTP?  Can a WCJ adopt the PQME’s apportionment reasoning and rely on the “consulting physician” for everything else?

    Your humble blogger does not have the answers (yet) but suspects that future panel decisions will clarify just how nice of a Trojan Horse the Legislative Greeks gave us.

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Valdez Case up for Review by Supreme Court

October 22nd, 2012 No comments

The California Supreme Court has decided to take up the Valdez case!

As my readers will no-doubt recall, your humble blogger has diligently documented the progress of the Valdez case, and all its potential benefits for the defense in California’s workers’ compensation system.

Based on nothing more than the description on the Supreme Court website, it appears that the only issue left in Valdez is admissibility – whether treating physicians outside of a valid Medical Provider Network are admissible.  It appears that the holding of the Workers’ Compensation Appeals Board with respect to liability for such physicians’ bills is undisputed – the defense will likely remain liability-free, much to these lien claimants’ dismay.

But what happens if the reports are admissible?

For one thing, applicant’s counsel will be able to unnecessarily prolong litigation my delaying resolution and the close of discovery to allow for more evaluations and reports.  Additionally, applicant-friendly QMEs will have more ammunition upon which to base their reports – imagine a QME who fails to include necessary discussions on such topics as apportionment; a crafty applicant’s attorney will argue that between the extra-MPN physician’s report and the QME’s report, there is a complete report upon which to award Total Permanent Disability for that vicious paper-cut cruelly suffered by applicant on his day off while he was thinking about work.

Hopefully the Supreme Court will recognize that, although applicants should be able to hire as many witch-doctors and butchers to “treat” themselves on their own dime, those so-called reports should remain inadmissible, and the arena of discovery should be limited to the MPN-based treating physician and the Agreed/Qualified Medical Evaluator (or evaluators).

In the meantime, extra-MPN liens should be settled for token amounts and the possibility that extra-MPN reports will be found inadmissible should be used to leverage a more reasonable settlement for the cases-in-chief.

When your humble blogger knows more, dear readers, so will you.

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Appeal Filed in Valdez Case – MPNs May Rise Again!

August 7th, 2012 No comments

Good news, dearest readers, good news!  Workers’ compensation defense attorneys often enough have to provide bad news, but today is an exception.

Bearing the hopes and dreams of the defense community, the defense in the Valdez case has filed a petition for a writ of review before the California Supreme Court.

As you may recall, the Valdez case has been an emotional and legal rollercoaster for all the lawyers and adjusters in California, as it first gave the Medical Provider Networks considerable teeth in an en banc decision before making it once-more toothless in a subsequently published Court of Appeal opinion.

If the Supreme Court elects to review the case, it will have to decide what the legislature intended in allowing for MPNs.  Was it just an effort to limit the medical expense imposed on the defense by pre-negotiating the costs of medical treatment for (allegedly) injured workers?  Or did the legislature intend to provide a middle-ground of medical-legal opinions?

It is my understanding that the Supreme Court Justices are regular readers of this blog, so I shall offer my reasoning and submit it to those Justices for consideration.

Prior to the “big reform” of 2004/2005, the parties used to retain their own Qualified Medical Evaluators; now there is a panel process that removes some of the choice from the parties.  The legislature most likely intended to do the same thing with the treating physician.  After all, the defense can create a medical provider network and the applicant may choose a treating physician from within that network, which should include at least 3 physicians of every specialty.

If, as the Court of Appeal found, reports of non-MPN treating physicians are admissible, hasn’t the applicant’s right to an Applicant Qualified Medical Evaluator survived the reforms and the defied the Legislature’s intent?  After all, an applicant with no exposure to the workers’ compensation system will likely defer to his or her attorney in terms of treating physician, and the applicant’s attorney probably knows a few physicians in each specialty that tend to… well… give undue weight to subjective signs of impairment.

Here’s hoping that the Supreme Court grants review and gives the MPN its teeth back!

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More Bad News on Valdez

June 19th, 2012 2 comments

And so, the bad news continues.

The Court of Appeal, having struck down part of the Valdez en banc decision, has now ordered its opinion to be published.  The Valdez case previously held that applicant’s treatment outside of a validly established Medical Provider Network is not to be at an employer’s/insurer’s expense and any reports or evidence generated will be inadmissible.

Granting applicant’s petition for reconsideration, the Court of Appeal, in an unpublished opinion, reversed the Workers’ Compensation Appeals Board, instructing it to allow extra-MPN reports and evidence to be admitted.  Now, it appears, that opinion has been ordered published and has become cite-able authority.

The only remaining silver lining is that employers/insurers are (for now) not liable for payment of these reports.

How many shoes should we expect to drop?

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Valdez Struck Down in its Prime!

June 1st, 2012 2 comments

And so it was in the world of California workers’ compensation defense, as the voices of joy and celebration were silenced by the Court of Appeal on May 29, 2012.  And, what historians would one day call the “Valdez bubble of sanity” came to an end.

In a (mercifully unpublished) opinion, has reversed the Workers’ Compensation Appeals Board in the Valdez case, and ruled that extra-Medical Provider Network reports are admissible.  The Court of Appeal does not address who pays the bills in these cases, so presumably the en banc decision in that regard still holds – if the applicant wants non-MPN treatment and reports, the applicant can pay for them.

The Court of Appeal purports to effect the Legislative intent, but your cynical and doubtful blogger can’t help but wonder why the Court of Appeal thinks that the Legislature intended to force the defense into the panel QME system, while allowing applicants to retain their own QMEs as was the case before the SB-899 reforms.

After all, isn’t the unrestrained choice in treating physicians, without allowing any sort of control on the part of the defense, effectively allowing applicants to retain a PQME?

In its reasoning, the CoA notes that “[i]t does not make sense, however, to construe section 4616.6 as a general rule of exclusion, barring any use of medical reports other than those generated by MPN physicians.”   But that’s what Article 2.3 does – it specifically lists the manner in which treatment may be obtained – through an MPN physician, dispute resolution through an independent medical review, or case-by-case exceptions for when a certain specialty is not within the MPN.  The legislative scheme appears to be fairly adamant about limiting expert-shopping, both on the treatment front and in the medical-legal process.

The CoA also relies on the reasoning that section 4062.3 allows the parties to submit treatment reports to the panel Qualified Medical Evaluator (“[a]s the Legislature permitted the parties to submit non-MPN medical reports to the qualified medical evaluator, there is no basis to infer a legislative intent to preclude their use in other proceedings.”)  But, again, Labor Code section 4062.3 must be read in the context of the entire reform, which precludes non MPN reports except in very specific circumstances.

Fortunately, this is an unpublished decision.  So, in subsequent cases, when your eager defense attorney cites to the en banc panel opinion in Valdez, the record will not support a citation to the Court of Appeal decision reversing it or its reasoning.  Unfortunately, we can expect another Valdez decision from the WCAB shortly that will be citable and will be, more or less, in line with Court of Appeal decision.

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Valdez Decision Gets it Right on MPN

October 3rd, 2011 No comments

In previous posts we discussed the case of Valdez v. Warehouse Demo Services, how it provided force for the medical provider networks, then vanished in a puff of smoke as the commissioners of the Workers’ Compensation Appeals Board needed to think more about their various positions on the issue.

Your humble blogger expressed concern that the WCAB would attempt to fix something that had not yet been broken,  by rendering the MPN system useless and without force.  It appears that those concerns were much like the mythical city of Gregtopia– unfounded.

The original Valdez decision proclaimed that the reports of treating physicians outside a validly established MPN are inadmissible and the defendant is not liable for the costs incurred of treatment or drafting the report.

The WCAB then took time to consider the issue further, reasoning that there might be instances in which non-MPN treator reports are admissible.  The verdict is now in – there aren’t.

Over the concurring in part/dissenting in part opinions of two of the five commissioners, the WCAB finally concluded that the MPN provides a shield against increasing litigation and questionable medical opinions.

In what is no doubt an overstatement of the gravity of this decision…

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Treatment At His Own Expense – Including a Past Medical Award?

July 11th, 2014 2 comments

Ok, dear readers, your humble blogger has a crazy question with which to ruin your weekend: what does the wording of “at his or her own expense” mean?  As my beloved readers will recall, the Supreme Court interpreted Labor Code section 4605 to mean that an injured worker can treat outside of the Medical Provider Network “at his or her own expense.”  (Remember the Valdez decision?)  But what does that mean, exactly?

Let’s take some hypotheticals.

Applicant sustains an injury to the back working at a duck farm lifting some heavy bags of duck feathers.  His employer’s insurer wants to send him to an MPN physician, but the quacking sounds remind applicant of work so he decides to pay for his own treatment.


If he goes across the street to the medical offices of Whey, Cheatum, and Howe, D.C.s and offers to pay cash for treatment, are we within the scope of 4605?  Probably – that seems about as clear-cut as you can go.

Now, let’s change it up a bit – what if Donald (that’s the injured worker’s name, by the way) wasn’t always working on that duck farm?  In fact, Donald has a prior injury to the back from when he was an English teacher at Duck U., and that claim was resolved with an award, including future medical treatment.  If he decides to treat the same body part, but claims it under Duck U.’s medical award, is it still “at his or her own expense”?

On the one hand, if it is at his own expense, does that mean that the second employer is somehow shielded from a contribution claim from the first employer/insurer?  If it isn’t at his own expense, does that mean he is precluded from treating under his old award because there is an accepted injury?

Now, those of you still reading this most irritating of blog posts, out of some intellectual masochism, are probably thinking “well, the awards overlap, so it’s not at his own expense.”  Well, then lets add another fact.

Labor Code section 4604.5 provides a cap on all post 1/1/2004 injuries – no more than 24 chiropractic visits.  So, Donald only saw a chiropractor 12 times for his back as a result of his old injury – what if he decides to use the other 12 for this new injury?  He’s using up a finite resource, as Duck Farm’s UR said he doesn’t need chiropractic treatment at this point, but Duck U.’s UR vendor, without addressing the issue of causation, has found chiropractic treatment to be appropriate now.


Since he’s down to 12 visits, is it “at his … own expense,” as contemplated by Valdez and Labor Code section 4605?

What do you think, dear readers? What position would you take?  Because, if you know that Donald isn’t going to treat within your MPN, you might have to risk exposure for a contribution petition if is not at his expense, or you might have to let the non-MPN reports come in if you take the position that is at his own expense.

Enjoy your weekend, dear readers, but when Monday comes I expect some answers!

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Exp. Hearing can Enforce MPN During 90 Day Delay Period

February 10th, 2014 No comments

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.

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Copy Services Fee Schedule? Yes Please!

October 9th, 2013 No comments

Alright, dear readers! Put away your IMR forms.  Drop those Valdez briefs.  Forget all about your treatment-only psyche claim.  It’s time that we look at the true heart of the SB-863 reforms: copy service fee schedules!

That’s right, good people of the Workers’ Compensation world, we’re going to rein in the copy services.

If you’re unfamiliar with the scam, it goes like this: when the defendants want to subpoena records, they’re going to look at the price tag for the services (because they’re the ones paying for it).  So if Jack’s Coy Copiers decide to provide a $900 bill for 25 pages of copies, they won’t be getting any more business from Insurance Co. X.

Applicant’s on the other hand, want the copy service to be as expensive as possible.  If you are an efficient, honest, and cheap copy service, the applicants’ bar doesn’t want anything to do with you, because you’re only getting half the job done… that half being subpoenaing and copying records.  The other half is inflicting pain on the defense – letting them know that this will be yet another cut in their litigation budget because they had the gall not to stipulate to 100% PD at the first sign of industrial paper cut.

So, while the defense-preferred copy services find themselves in an arms race to the bottom of the price bracket, the applicant-preferred copy services find themselves in a bidding war to the top.  Note, dear readers, that the basic ideas of free market economics are present in the regulated world of workers’ compensation as well.  If you look at the fee applicants attorneys are allowed to charge for their “services” during depositions, you can see how out of touch with reality that market is.

Well, SB-863 specifically provided for a reasonable fee schedule to be established for copy services (the administrative director and the Commission on Health and Safety and Workers’ Compensation were to do a joint project here).  Well, the CHSWC has come through, and now welcomes public comment on their proposed flat-fee schedule for a set of records up to 1,000 pages.

The report proposes that the first 1000 pages be charged at $103.55, with additional sets available electronically for $5.   Surprisingly, the report does not make a recommendation for electronic-only production.  For example, your humble blogger likes to keep a copy of all records on his computer, so if the subpoenaed records come in paper form, into the scanner they go.

Your humble blogger’s suggestions:

  1. Allow a smaller fee for digital-only production; and,
  2. Allow service of the subpoenaed records in the same format ordered by the subpoenaing party (so if I order it on CD, the other side should be satisfied with getting a CD).

Overall, though, this is a step in the right direction: here’s hoping this approach is adopted, and a bit of water is thrown on the Scorched Earth policies of some applicants’ attorneys.

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