by Steve Kline, Esq.
EK Health Services' Legal Counsel
Last year, the WCAB, sitting en banc, decided that if there was a properly established and noticed Medical Provider Network (MPN) that an applicant could not treat outside of that MPN. Most importantly, any treatment outside the MPN was not the liability of the defendant/employer and that any medical reports issued by a non-MPN physician were inadmissible. (Valdez v. Warehouse Demo Services (2011) 76 Cal.Comp.Cases 330 and 76 Cal.Comp.Cases 970).
In the middle of January, 2012, a Panel of the WCAB Commissioners decided Clifton v. Sears Holding Corp. ADJ7660641. While not precedential, the opinion has been widely reported. It is very instructive as to how at least three of the seven commissioners are thinking.
The question posed in the Clifton matter is: What evidence is needed by a defendant/employer to prove that an MPN is properly established and noticed?
The applicant asserted that the defendants had the burden to show that a notice was sent to the applicant and that she received it. They also asserted, in the words of the Panel, their “interpretation of defendant’s burden, despite its lack of authority and outrageous reach.”
They claimed that all the defendant’s documents presented needed to be authenticated. The Panel responded, “Authentication is not a requirement ordinarily applied to evidence such as this. The WCJ’s acceptance of applicant’s hypervigilant interpretation of defendant’s burden was unwarranted and inconsistent with the informality of WCAB proceedings.”
In answering the question posed, the WCAB Panel set out a clear standard. “In short, 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 AD’s Web site, and by offering un-rebutted evidence that it provided the required notices.”
This ruling supports the letter and the spirit of the MPN law & regulations. By allowing the Workers' Compensation Trial Judges to take Judicial notice of the DWC list of approved MPNs saves countless hours and litigation costs. After all, the rigorous application and review by the DWC of MPN applications should be supported.
With respect to the Notices of the MPN to employers and injured workers, following the regulations and delivering them in multiple languages as necessary goes along way to supporting the notice requirement. A poster placed in an appropriate place at the employment site is also important, so it’s a good idea to get out your cell phones and take the pictures.
Finally, a Notice sent with a proof of service will also assist in forging the evidence that the notices have been properly sent.
The battle to take injured workers out of properly established and noticed MPNs will continue. However, it is clear that the WCAB wants MPNs to play a part in the system.