EK HEALTH

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

The Workers' Compensation Appeals Board commissioners issued two en banc decisions of note late in September. At the beginning of this summer, the Board decided to re-look at their earlier landmark decision in Valdez v Warehouse Demo Services.

In that decision they had held that where there was a validly constituted medical provider network (MPN) with proper notice being given to all employees and injured workers, medical reports for treatment outside of the MPN would be inadmissible. Further, the decision held that the defendant would not be liable for the payment of that inadmissible report.

With Valdez 2, the commissioners stated, "We will affirm the April 20, 2011 en banc decision, wherein we held that where unauthorized treatment is obtained for an industrial injury outside a validly established and properly noticed medical provider network, the resulting non-MPN treatment reports are inadmissible and may not be relied upon to award benefits."

The basic facts of the case were that an injured worker, encouraged by her attorney, abandoned the MPN and changed her primary treating physician to a non-MPN physician.

Earlier this year, I wrote that this ruling was huge, bringing substantial support to the cost containment intentions behind the creation of the MPN by legislature. They issued an even stronger opinion in Valdez 2, as the majority of commissioners shredded the applicant’s arguments with some scathing language:

"Much of applicant’s argument with respect to this contention is based on the false assumption, speculation and unsupported allegations".

The next step is with the applicants.  More likely than not, they will seek a Writ from the Court of Appeal and possibly with the California Supreme Court. However in the meantime this ruling stands and is the governing law that the trial judges must follow.

The challenges to the MPN will shift to whether or not it has been validly established and properly noticed. Trial judges will strictly enforce the multiple technical requirements for notices. Employers and insurers will need to be careful to make sure that every step in setting up an MPN is done.  Shortcuts will lead to problems.

The MPN was intended to be a tool for delivering quality medical care with cost containment. Valdez 2 supports those intentions with a strong well reasoned opinion.

In the other case, the question is who wins the race to the Administrative Director’s office for the issuance of a panel of qualified medical evaluators (PQME) when agreement for an Agreed Medical Evaluator (AME) fails.

The case, Messele v Pitco Foods, et al. attempts to simplify the arcane rules about service of documents and counting days.  Sitting, en banc, the Commissioners held that “(1) when the first written AME proposal is made by mail or by any method other than personal service, the period for seeking agreement on an AME under Labor Code section 4062.2 (b) is extended five calendar days if the physical address of the party being served with the first written proposal is within California; and (2) the time period set forth in the Labor Code section 4062.2 (b) for seeking agreement on an AME starts with the day after the date of the first written proposal  and includes the last day.”

Do you have an example of how this works?

Applicant’s attorney mails a request for an AME with a list of physicians to the Defense attorney on April 1.  They have 15 days to negotiate the AME selection. (10 by regulation plus 5 for mailing)

Should the negotiations fail, the earliest date that either party could submit a request to the Administrative Director requesting a panel would be on April 17.

You don’t count April 1 and the parties must be allowed to have the full use of April 16 to exercise their rights.

The AME / PQME is always a difficult one because so much authority is being ceded to that evaluator.  The struggle for both sides to select the proper specialty and evaluator can have significant impact on the outcome of a matter.  Strict compliance with the time limitations is the mandate from the Board.

Thanks for your attention.