EK HEALTH

by Steve Kline, Esq.
EK Health Services' Legal Counsel

One of the 2004 SB 899 reforms was the introduction of the Medical Provider Networks (MPN) to the California workers' compensation system.  It was initiated partly as a solution to increasing medical costs within the system.

Initially some applicant attorney’s feared that it would it destroy their control of steering medical treatment to medical doctors with whom they had familiarity and support.  Using a primary treating physician who writes good permanent & stationary reports is almost as important as treatment itself.

It goes without saying that creating an MPN that could achieve the cost savings contemplated by the 2004 Legislature is a formidable task with the expanse of California and the stringent coverage rules set out by the DWC.  The coverage in rural communities along the Central Coast, in the Northern area near Chico and Redding and other areas is very difficult, if not impossible.

On June 13, 2011, a Panel decision was issued answering the question as to who has the responsibility to find an injured worker a doctor, when the MPN list has no one available?   Remember, Panel decisions are not precedential, but rather only informative as to the WCAB’s thinking.

The case, Rodriguez v, Pea Soup Andersen’s Best Western; SCIF came out of the Grover Beach Board.  In 2000, a Stipulation & Award was issued that Ms. Rodriguez was 100% permanently disability for injuries to her left elbow, left shoulder, right knee, and cardiovascular system (hypertension). She also was awarded lifetime medical coverage.

In September, 2008, Ms. Rodriguez notified SCIF that her primary treating physician was no longer treating patients. For the next 12 months, SCIF attempted to find a doctor in the Lompoc area who would provide medical coverage.  In August, 2009, Applicant’s Attorney wrote a letter to SCIF advising them that not one of the physicians on their MPN list was “willing and able” to treat his client.  

In January, 2010, he sent a letter to SCIF regarding their refusal to tender medical treatment.  He made a demand that SCIF provide an internist to treat his client. Later that month he filed a Declaration of Readiness and a Petition for penalties and attorney fees.

In April, 2010 a doctor was located to treat the applicant, but outside of the workers' compensation system.  At the hearing on the Petition, the workers' compensation judge (WCJ) relied on the over 20 year workers' compensation principle that Labor Code § 4600 mandates that “Medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer.”  This is not to be considered as a passive role,  but rather an affirmative action.  Thus, the employer has the responsibility to find the doctor for the injured worker. If necessary, the cases have held the employer must take the initiative with regard to medical coverage.

In 2006, the Knight v United Parcel Service case examined these principles with respect to an MPN.  The conclusions were that if an employee was not provided with the appropriate notice of his or her rights under the MPN which resulted in a neglect or refusal to provide treatment, the employee would be entitled to self-procure treatment outside the MPN.

The Rodriguez Panel held that, “when no physician within defendant’s MPN who is within a reasonable geographic area of the employee’s residence is willing to treat the employee, and when the employee’s own reasonable efforts have also failed to find a physician who is willing to treat, then the defendant has an affirmative duty to find a treating physician.”

The Petition clariofied the responsibilities of the parties.  The WCJ found and the Panel affirmed his decision that SCIF had done all that they could to find an appropriate treater.  Penalties, sanctions and attorney fees were not awarded.  Most importantly, SCIF had put into evidence documentation of its ongoing efforts to locate a physician for the injured worker and the reasons that said physicians had rejected the case.  The three most important words in law:  Document. Document. Document.

Well constructed MPNs can assist in containing costs. However, there will always be a few outlier cases. Treating physicians for these cases outside the MPN can best be handled through collaboration and the employer understanding its affirmative duty to provide the treatment.  

On a personal note, at EK Health, we are very much of a team, with each person stepping up and helping one another.  Prior to today, my draft LegalEase articles would be reviewed by Dr. JoAnn Marsh, D.C.   She would unabashedly comment and make my draft so much better.  She passed away on July 20, 2011 and I miss her already.  A friend. A colleague. A passionate person, driven by integrity and purpose.  May her memory be a blessing and inspiration for all of us.