WCDefenseCA

Happy Friday, dear readers!

Recently, your humble blogger was sitting at the back of a board hearing room, and overheard a workers’ compensation judge express some mild frustration at the extent to which settlement papers have grown over the years – addenda and supplemental stipulations and additional waivers and extra releases and so on…

Your humble blogger gets it and agrees – it’s silly that we can’t just have reasonable agreements with simple understanding.  Here is money – good luck to you and may our paths never cross again under such circumstances.

But, just like every stop sign on a country road marks an auto-related fatality, every additional paragraph, disclosure, or stipulation reflects another war story…

How do you feel about always putting the issue of primary treating physician in dispute?  How would you feel about always having, as a triable issue, applicant’s primary treating physician?  How do you feel about having to write in additional stipulations that the current PTP is not in dispute, but the parties are deferring the issue of litigating the primary treating physician and Medical Provider Network status of the current PTP, without any waiver of rights…?

In the recent case of Shawl v. Steve’s Automotive, applicant was treating with a non-MPN physician since before the defendant had an MPN.  When the matter of treatment, and the dispute regarding MPN status, came to a hearing AFTER defendant had set up an MPN, the parties had stipulated on a 5-pager that the non-MPN physician was the primary treating physician.

When the defendant tried to move applicant into the MPN, of which that primary treating physician was not a part, applicant objected, arguing that defendant had previously stipulated to the non-MPN physician’s status as the primary treating physician and that regulation 9767.9(a) allows an employer to authorize non-MPN treatment.  The WCAB adopted this reasoning, reversing the WCJ and finding that the stipulation that, at the time the 5-pager (or, pre-trial conference statement) the primary treating physician was binding.

There was, of course, a dissent, reasoning that the en banc case of Babbitt v. Ow Jing (2007) held that a defendant can move an injured worker into the MPN at any time, regardless of the date of injury or the date of an award of future medical care.  Presumably, this would be restricted by 9767.9(a), which provides for some continuation of care.

The dissent further made the point that the legislature allows four circumstances, as described in section 9767.9, which allow an employee to resist a defendant’s efforts to move that employee’s care into the MPN.  Recognizing that the current PTP is a non-MPN PTP is not one of them.

So, in this case, the WCAB majority held that the one-time stipulation that the current PTP was a non-MPN PTP, was binding on the defendant, presumably for the foreseeable future.  If that’s the case, perhaps defendants should be cautioned to ever stipulate to a non-MPN PTP as the current treating physician, for fear that such a stipulation may, in the future, defeat efforts to move an injured worker into the MPN.

By the same rationale, if defendant authorizing a 25^th chiropractic visit, and agrees that for the 25^th visit the chiropractor is still the primary treating physician, has the defendant waives its rights under California Code of Regulations 9785(a)(1)?  Does the authorization of the 25^th visit authorize visits ad infinitum?

Or, perhaps we have to add another paragraph for this narrow scenario every time care is authorized.  Perhaps the issue of who the PTP is should be litigate at every instance to avoid a waiver of rights.  Your humble blogger, with all respect and deference, hopes that future panel cases may suggest a different answer to these questions.

Have a good weekend, folks!