Home > Uncategorized > On MPN Access Standards (Part 2 of 3)

On MPN Access Standards (Part 2 of 3)

So, there I was, dear readers, torn in all different directions – the loyalty to a friend in need, the allure of a relaxing evening, the still unsettled issue of MPN access standards… and so, I did the only thing a good friend does in such a situation – let’s defend us an MPN!

The problem with this issue is rooted in California Code of Regulations section 9767.5.  The language states that an “MPN must have at least three available physicians of each specialty to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and within the access standards set forth in (1) and (2).”  Subsection (1) requires “at least three available primary treating physicians … within 30 minutes or 15 miles of each covered employee’s residence or workplace.”  Subsection (2) requires “providers of occupational health services and specialists who can treat common injuries experienced by the covered injured employee within 60 minutes or 30 miles of a covered employee’s residence or workplace.”

The defense position is typically to argue that we can provide you with three doctors within 15 miles, or, if you want to specific a specialty, we can provide you three physicians of a particular specialty within 30 miles.  By contrast, the applicant position is (typically) to demand at least three chiropractors or three pain management physicians within 15 miles of the employee’s residence or workplace.  What meaning does subsection (2) have in such an argument?  That orthopedic surgeons are “specialists” but pain management and chiropractic treating physicians are not.

Unfortunately, the law on this is not very settled.  There have been a few panel cases on the subject, but not much else (that your humble blogger could find).  So, what could I tell Alex?  What could Alex tell his client?

In the panel case of Martinez v. New French Bakery, the WCAB was addressing the issue of MPN access – applicant had claimed that defendant’s failure to provide three orthopedists within 15 miles of applicant’s home or workplace rendered the MPN invalid.  In seeking reconsideration of the WCJ’s ruling to that effect, defendant argued that the appropriate standard is 30 miles.  The WCAB granted reconsideration, reasoning that “[h]ere, the WCJ found that defendant failed to provide three orthopedic surgeons located within 15 miles of applicant’s home or workplace.  This finding was in error because the WCJ applied the 30 minutes/15 miles access requirement for treating physician under Rule 9767.5(b) rather than the 60 minutes/30 miles access standard for specialists, such as orthopedists, under 9767.5(c).”

Another, split panel opinion, recently went the other way.  In the matter of Lescallett v. Wal-Mart, applicant raised effectively the same argument: if there weren’t 3 pain medicine physicians within 15 miles or 30 minutes of applicant’s home or workplace, the MPN was defective.  Defendant sought reconsideration of the WCJ’s ruling to that effect, and argued that the proper standard for a specialty, like pain management, was 30 miles or 60 minutes, as per subsection (2).  In a split panel decision, the Lescallet opinion denied reconsideration, ruling that the appropriate standard is from subsection (1).  The majority seemed to hold that subsection (1) applied to primary treating physicians, while subsection (2) applied to secondary physicians.

The dissenting opinion would have granted reconsideration, reasoning that “when a specialist is selected within an MPN to provide medical treatment as a primary treating physician, or as a secondary physician, the access standards for specialists apply.”

So, dear readers, what line of attack can you take, with this limited authority available, to defend the theory that any PTP will do within 15 miles, and a demand for a certain specialty affords the defendant 30 miles to comply?

Check back on Friday for your humble blogger’s even humbler suggestions.

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