WCDefenseCA

Hello, dear readers!   So, show of hands: who is blowing off Monday and taking a four-day weekend through the end of Veteran’s day?  Ok, now, show of hands: who actually raised their hands in response to a blog post that can’t see them or acknowledge the hand-raising?

For those, like your overworked and underfed humble blogger, who are powering through Monday and, in all likelihood, Tuesday, I have the following story to relate to you.

A dear and beloved friend of mine obtained one of those rare gems in workers’ compensation – one of those diamonds that are rarely found and always appreciated: the full discharge.  The injured worker can avoid being maimed by surgery or having his life destroyed by doctor-provided narcotics, and can  return to full duty.  Meanwhile, the employer can go back to the work at hand (the business of business is business, after all).

Well, what if the injured worker, or his attorney, isn’t too satisfied with a total discharge?  After all, how much does an applicant’s attorney get from an attorney fee of 15% off of a 0% PD and no need for future medical care?  (Hint: even 100% of 0 is still 0).

So, what’s to be done in this case?  What devious treachery can the employer and/or its insurer expect from the less reputable applicants’ attorneys looking to turn a healthy worker into an unhealthy one?

California Code of Regulations section 9785(b)(3) provides that [i]f the employee disputes a medical determination made by the primary treating physician, including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth at Labor Code section 4060, 4061, 4062, 4600.5, 4616.3, or 4616.4.”

Now, what do you think, dear readers, would the applicant’s attorney prefer to have his client on temporary total disability and receiving some sort of “treatment” while awaiting a panel, or would the attorney rather his client go back to work and put this whole injury behind him, possibly decided to abandon any claim?

If you’ve got an MPN set up, the applicant’s attorney is going to turn to Labor Code section 4616.3, and demand an MPN second opinion and possibly a third opinion, until some doctor says that further treatment actually is necessary.  The specific language is in subsection (c): “[i]f an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network.”

Furthermore, the applicant’s attorney will tell you, Labor Code section 4061 specifically excludes “the employees dispute of the medical provider network treating physician’s diagnosis or treatment recommendations under Sections 4616.3 and 4616.4.”

So, then, dear reader, are you stuck?  Is there nothing you can say to respond to these demand for a second, or possibly third, opinion as to whether further treatment is necessary?  Maybe there is.

Websters defines “diagnosis” as “the process of determining by examination the nature and circumstances of a diseased condition and the decision reached from such an examination.”

Websters also defines “treatment” as “to deal with (a disease, patient, etc.) in order to relieve or cure.”

Do either of those definitions fit with “discharge from care”?   As such, does 4616.3 really apply, given that it provides a second and third opinion as to “the diagnosis or the treatment prescribed.”

In the panel case of Acosta v. Balance Staffing Services, where the same issue arose and the WCAB, concurring with the WCJ, found that a discharge from care without need for further medical care was subject to the panel process, and not the MPN second-opinion process.

Now, here’s another tidbit – you probably like the specialty of the physician that gave you a discharge.  If that’s the case, and if you’re timely with your panel request, the treating physician can’t be changed under regulation 9785(b)(2), so odds are your panel will be in the same specialty as the one that found your injured worker dischargeable.  All good stuff, no?

What do you think, dear readers, is a discharge from care a diagnosis or treatment as contemplated by Labor Code section 4616.3?  Let your wisdom grace the comments below, or send an e-mail to your humble blogger.