WCDefenseCA

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Granting applicant’s petition for reconsideration, the Court of Appeal, in an unpublished opinion, reversed the Workers’ Compensation Appeals Board, instructing it to allow extra-MPN reports and evidence to be admitted.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?

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In a (mercifully unpublished) opinion, has reversed the Workers’ Compensation Appeals Board in the Valdez case, and ruled that extra-Medical Provider Network reports are admissible.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.

Can a defect in a Medical Provider Network be cured?  The answer appears to be “yes” according to at least one workers’ compensation Judge and the Workers’ Compensation Appeals Board in the case of Sara Ochoa v. Bel Aire Window Coverings.

Lien claimant Aspen Medical Resources petitioned the Workers’ Compensation Appeals Board for reconsideration of the workers’ compensation Judge’s order dismissing its lien.  The WCJ held that lien claimant had “failed to meet their burden of proof that their charges were credible or reasonable,” and that “defendant had a valid Medical Provider Network in place at the time of lien claimant’s date of services.”

Lien claimant argued that the Medical Provider Network was defective, but didn’t provide any reasoning.  In any case, applicant was referred to a chiropractor shortly after her injury, but notices of the MPN were not sent to her or her treating chiropractor until after she began treatment.

So the only possible theory lien claimant could go on to challenge the validity of the Medical Provider Network is that the notices of the MPN were not provided at the time of injury.  Swing and a miss.  As the WCAB put it, “a delay in serving the injured worker with required MPN notice does not mean that a defendant is liable forever after for the costs of any and all treatment self-procured by the injured worker.”

The WCJ also held that the “durable equipment” of a hot/cold therapy unit would only be “reasonably necessary” if applicant had undergone surgery, which she had not.  The instructions for use of the equipment specifically stated its purpose was to help post-surgery recovery.

Now, another twist to this case was lien-claimant’s objection, made at trial, that  defendant did not provide a proof of service of its trial exhibits.  The WCJ held that the “objection amounted to surprise and an attempt to catch the opposing side off guard” and that “[l]ien claimant had more than enough time to review the exhibits prior to the trial.”

It certainly looks like the old tricks of lien claimants are starting to resemble duck suits during hunting season.

Mark Walls, manager of the Work Comp Analysis Group on LinkedIn, has an interesting article out about the pros and cons of medical provider networks.  The MPN is a subject oft-touched on by your humble blogger, and generally in a fairly approving tone, as it can be a very effective tool to cut costs.  However, as Mr. Walls points out, there are dangers to a creeping increase in costs.

Often the story begins with a pitch.  A slick, sharply dressed salesman or woman from an MPN will make a presentation about all the money that can be saved by switching to his or her MPN.  The doctors are great, efficient, and honest – they will not let sympathy or prejudice influence their medical opinions.  The MPN cuts costs like a civil war surgeon, hacking and slashing.  And how is this possible, the pitch continues… because the volume of “patients” allows less to be charged for each visit, treatment, etc.  So everybody wins!  The employee gets fast, effective treatment and the insurance company or self-insured employer gets a smaller bill.

But there are other costs that need to be weighed.  Mr. Walls points out that some MPNs tend to increase the frequency of visits, trying to make their money back in a different type of volume of business.  But there is another, larger cost as well.  Litigation.

As pointed on this blog again and again, the MPN must be done right, or not at all.  If the MPN is not properly set up and properly defended, then the applicant will run up a medical bill outside of the network and the defense will be end up writing larger and larger checks.  The MPN must include enough treating physicians of every type in every area an employee is likely to be (this includes chiropractors, unfortunately.)

The MPN must also have proper notices to the employee – multiple languages, regular updates, notice at hiring, injury, etc.  If your MPN salesman doesn’t know these rules or can’t detail how the MPN will provide these services, then perhaps more investigation is necessary.

Here is a suggestion – whether you have in-house workers’ compensation counsel, a panel of defense attorneys to pick from, or an outside firm that handles all your workers’ compensation matters, pick a veteran attorney who knows MPNs through and through, and have him or her sit in on the sales pitch, taking notes and asking questions.  After all, the odds are high that two years down the line, this lawyer will be fighting off non-MPN lien claimants or driving back the applicant’s attorney insisting that a shoulder surgeon in Washington is reasonable for an employee living in San Francisco.

Time and again, the lien claimants and the applicant’s attorney have tried to knock the MPN wall down, and with a few exceptions, it stands still (at least in California).  I would say it’s absolutely worth having an MPN if you can have one set up, I would just suggest having a workers’ compensation defense attorney you trust help from the start.

If today’s blog post appears to be the product of an attorney, fiercely committed to the defense of his clients, but tragically suffering from vertigo, that attorney hopes you will forgive him – one of the more recent Workers’ Compensation Appeals Board panel decisions has left his head spinning.

A little background – we all read the Breanna Clifton v. Sears Holding Corporation case where three WCAB commissioners unanimously held that “a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPNs on the [Administrative Director’s] Web site, and by offering unrebutted evidence that it provided the required notices.”

It was all so simple – and now it’s not.  (Are your spider-senses tingling yet?)

In the recent case of Juan Carillo Matancias v. Milk Maid Dairy, applicant sustained an injury to his knee, when a birthing milk cow pushed him through a fence.  He was treated by a physician within the Medical Provider Network and then released from care seven months later.  At the time of the injury, applicant was provided an explanation of the MPN and a link to a website listing all of the MPN doctors.

Applicant was unhappy with being discharged to return to work and sought additional treatment from a non-MPN physician.  After the trial and conclusion of the case-in-chief, lien claimant sought to have its $15,000 bill paid by the defendant.

But the defendant had Clifton.

Raising the MPN defense to the lien, the defense had to sustain an adverse ruling from the workers’ compensation Judge who found that it is the defendant’s duty to prove the MPN is valid, even it the lien claimant does not raise it as an issue at trial, and the fact that the MPN is listed on the AD’s website is “weak sauce,” as the kids are known to say these days, without the defendant presenting that evidence at trial.

Nor did the defendant obtain relief from the WCAB, with two out of three commissioners holding that the MPN defense fails because there was no proof that defendant informed applicant, at the time of his discharge, that he could challenge the release from care or that the lien claimant was not in the MPN.

But even if we were to concede these facts, the lien claimant KNEW that it was not entitled to payment.  The lien claimant, a repeat player, built its business model around charging ahead with providing treatment, and then litigating the costs to recover payment.  After all, even without the lien claimants experience with other cases, the objection letters from the defendant came early and came often.

In any case, perhaps, dear readers, we must do the MPN dance at trial, regardless of the facts.

California’s Medical Provider Network is regularly the subject of both applicant attorneys’ and lien claimants’ raids.  But, just as walls well guarded do not fall, the MPN still has some stiffness in it left.

The recent panel opinion of Breanna Clifton v. Sears Holding Corporation shows the Workers’ Compensation Appeals Board’s resistance to applicant’s efforts to overwhelm the defense with burden after burden of proof.

Applicant self-procured treatment outside of defendant’s MPN, claiming she was entitled to temporary disability payments and reimbursement for treatment based on the opinion of this out-of-network chiropractor.

Defendant pointed out that the report was inadmissible and the claim for reimbursement barred in accordance with Valdez.  Applicant responded by claiming that defendant had not proven that the MPN was valid.

Defendant filed for reconsideration following the workers’ compensation judge’s award of everything under the sun to applicant.  In an act of moderation, the WCJ declined to order the executives of Sears Company to personally apologize to applicant in the form of a choreographed dance and song routine for daring to invoke a defense.  (Some day…)

Although the defense did not contest the finding of injury, it did object to the admission of the reports and the reimbursement for treatment expenses.

The panel held that “a defendant may satisfy its burden of proving it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPNs on the [Administrative Director’s] Web site, and by offering unrebutted evidence that it provided the required notices.”

Lien claimants have threatened to demand I prove every element and procedural requirement necessary for a valid MPN – now, the AD’s website is all the proof any attorney needs.

But what do you do when the applicant claims the notices were never provided?  Or, perhaps, after X years with his or her employer, the applicant suddenly doesn’t understand English?  The injury, you see, limited the applicant to his or he native tongue.

This can happen, of course, and the deposition will likely tip you off.  But be prepared with affidavits, witnesses, etc. – perhaps even a note in the employment file that applicant also speaks another language, so that the Medical Provider Network administrator can provide notices in English and the other language as well.

In any case, the MPN is a great wall against bad reports and inflated billing – when applicants and lien claimants try to push it down, don’t be afraid to push back!

The post made on Wednesday had some scary implications.  Fortunately, it appears there may be a light at the end of the tunnel, and this time it has a 50-50 chance of not being a train.

In the case of Michael Thomas v. Safeway Stores Inc., the Workers’ Compensation Appeals Board had previously ruled that the self-insured employer must pay for surgery to be performed by a surgeon in Washington, even though there were eleven surgeons in Safeway’s medical provider network which could do the surgery and were close to applicant’s residence in the San Francisco Bay Area.

Panic ensued among the defense community as the California Applicant’s Attorneys Association toasted to the death of the MPN over flutes of champagne.  But it appears that Safeway stood firm and in filing a petition for reconsideration was rewarded with the sight of the WCAB blinking.

Standing firm against the waves is a sensation every workers’ compensation defense attorney wants to feel – staying standing when the wave crashes against you is one rarely felt.

A new order issued granting reconsideration, giving the parties ten days to settle this dispute or to return to the workers’ compensation judge to give the defense a chance to cross-examine the panel qualified medical evaluator and offer rebuttal evidence.  After all, defendant’s due process rights were summarily brushed off thus far.

Defendant’s offer to settle the matter was fairly reasonable:  Safeway would pay for the surgery under the California fee schedule and applicant would pay for travel and lodging.  There is no word yet on whether the applicant, let alone the surgeon in Washington, would agree to these terms.

In short, it appears that sanity might return to the world of workers’ compensation, even if for a short while.  Workers’ compensation lawyers and adjusters can rejoice in that, at least for now.  Despite rockets red glare and bombs bursting in air, the MPN flag is still there!

In what is quickly developing into an MPN trifecta here at WCDefenseCA, drop by on Monday to see another pro-MPN opinion recently released into the wild.

Gather around, dear readers, and let your eloquent and intriguing blogger tell you a story.  Once upon a time, in a realm known as California’s workers’ compensation, defendant employers came together to for the mutual benefit of employers and employees alike, creating the medical provider network system to weed out prescription-happy and over-billing medical care providers.

All was well with the world, but at every turn applicant’s attorneys, to the detriment of their clients, and medical providers, to the detriment of their patients, tried to overthrow the MPN system.  The fate of MPNs dangled precariously and uncertainty filled the air when, to the surprise of all, the Workers’ Compensation Appeals Board issued several en banc opinions in the Valdez case, declaring that applicants must limit their treatment to medical provider network physicians, that the reports of non-MPN physicians were inadmissible, and that insurance companies and self-insured employers were not liable for the non-MPN medical bills.  And joyous celebration erupted in the streets!

Then, of course, the world of workers’ compensation came back to its senses and tossed the rule of law out the window.

The case of Michael Thomas v. Safeway Stores, Inc. is making the rounds and creating quiet a bit of chatter on and off the internet.

Michael Thomas sustained an injury to his shoulder and required surgery.  However, applicant’s treating physician wrote a report in which he claimed that the 11 MPN orthopedic surgeons in the San Francisco Bay Area were not qualified to perform the surgery, and that the only man in the world that could possibly save applicant’s shoulder was a surgeon in Washington who had written several articles on the matter and performed the surgeries with some regularity.  One of the treating physician’s more memorable quotes: “If Mr. Thomas was my family member, [the Washington surgeon] is the only one I would even consider treating a case like Mr. Thomas’s.”

I only wonder where the treating physician would send Mr. Thomas if the treating physician himself had to pay for the surgery – it is so easy to be generous with the money of others, after all.

Applicant petitioned for reconsideration of the Workers’ Compensation Judge’s ruling denying the treatment, arguing  that the “reasonable geographic area,” as contemplated by California Code of Regulations section 9780 can be determined on a case-by-case basis, and in this case should include the 812 mile distance to the Washington surgeon’s office.  The WCAB ruled that  the facts in this case compel a finding that a surgeon in Seattle, Washington is in the reasonable geographic area of San Francisco.  Naturally, defendant must pay for flights, accommodations, and whatever fees may come.

Doesn’t this case mean that all you need to beat an MPN is to have a treating physician say none of the locals are qualified?  Hopefully, this will be an isolated lapse in judgment rather than a new policy.

It is no secret at all that your tireless and consistent blogger is a fan of Medical Provider Networks.  He has screamed his approval from the mountaintop of this blog for all to hear.  But, realistically, the MPN is not a panacea: every armor has weak points.

One such gap in the defense was touched on in the recent case of Garcia v. Zenith Insurance Company (2011) 39 CWCR 293.  There, a Workers’ Compensation Judge had awarded applicant treatment outside of the MPN because the MPN did not include chiropractors.  Citing California Code of Regulations 9767.5, the WCJ let the applicant proceed with a non-MPN chiropractor.

The WCAB denied defendant’s petition for reconsideration.

Are you using an MPN?  Does it have “at least three physicians of each specialty…”?  Are there physicians within “60 minutes or 30 miles” of where your employees live or work?  These are all questions to ask, and regularly — the MPN is not a magic want but a scalpel to be used to great effect but only when wielded with precision and skill.

In any case, the good people at Zenith are no doubt working on their MPN right now, looking for honest chiropractors to add to their lists.

Your humble blogger wishes you a happy new year – enjoy the revelry and stay safe.  I will be at your service, bright and early, on Tuesday, January 3rd, 2012.  See you next year!

A new study from the California Workers’ Compensation Institute confirms that the use of medical provider networks is at an all-time high.  (Unable to resist making a sarcastic remark, your humble blogger will note that an unrelated study recently confirmed that water is wet, fire is hot, and businesses prefer taking advantage of favorable laws rather than tossing bags of money into a bottomless medical-industry pit.)

The study reviewed medical visit data from over one million claims with a date of injury from 2004 to late 2010, and evaluated whether those visits were to MPN doctors.  Since MPNs became available to insurance companies and self-insured employers and groups, the number has grown drastically, such that MPNs “accounted for more than 75 percent of all first-year, physician-based outpatient services rendered on” 2009 date-of-injury claims.

It is no closely-held secret that I am a big fan of MPNs.  They protect the employee from prescription-happy fraudsters, and they provide some defense against nutty professors for the employers.  But the greatest indication that MPNs work is found in studies like these – employers and insurance companies have their life-blood, dollars, on the line.  The fact that their defense of choice is the MPN is a testament to its effectiveness.