Workers Comp Zone


The California Supreme Court has decided to hear the Valdez case.

Several months ago that would have seemed like a big deal. Now it could turn out to be a big yawn.

In Valdez II, the WCAB 2011 en banc decision affirmed the holding in Valdez I that, where unauthorized treatment is obtained for an industrial injury outside a validly established and properly noticed Medical Provider Network (MPN), the resulting non-MPN treatment reports are inadmissible. That decision can be found here: … ldez_E.pdf

In May 2012, the California Court of Appeal Second Appellate District, Division Seven issued an unpublished opinion, granting the applicant’s petition for a writ and holding that:
“A divided Workers’ Compensation Appeals Board (WCAB) concluded that a medical report is inadmissible if it has been prepared by a person who is not part of a medical provider network established pursuant to Labor Code section 4616 et seq. We granted the petition for a writ of review filed by the employee, Elayne Valdez, because of the importance of the issues raised by the parties. We conclude that the rule of exclusion laid down by section 4616.6 applies only when there has been an independent medical review performed under the authority of section 4616.4. We therefore annul the decision of the WCAB and remand with directions for further proceedings that are consistent with this opinion.”

In reaching its conclusion the Court of Appeal decision authored by Justices
Zelon, Perluss and Woods reasons that:
“It does not makes 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. Section 4616.6 states nothing of the sort. If the Legislature intended to exclude all non-MPN medical reports, the Legislature could have said so; it did not. The WCAB appears to have based its conclusion that section 4616.6 “precludes the admissibility of non-MPN medical reports with respect to disputed treatment and diagnoses issues” on the circumstance that an employee can select a physician within the
MPN and is also afforded a “multi-level appeal process where treatment and/or diagnosis are disputed.” The fact that process is available to allow physician choice within the MPN does not, however, demonstrate legislative intent to exclude from all proceedings relevant evidence of the employee’s medical status.”

In concluding, the Court of Appeals noted that:
“As 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. It would be illogical to conclude that the qualified medical evaluator may consider non-MPN medical reports, but that those reports must be excluded if a party seeks to introduce them in other proceedings solely because they have not been prepared by MPN physicians. Our conclusion is buttressed by the employee’s undoubted right to contract with physicians of his or her choice. A rule excluding medical reports by such physicians for the sole reason that the report was not prepared by an MPN physician would eviscerate the right guaranteed by section 4605.”

But by the time the California Supreme Court hears arguments and renders a decision, the Court will be looking at a vastly different California workers’ comp system.

Many-perhaps most-of the loopholes that allowed attorneys (particularly in Los Angeles) to refer workers to non-MPN treating physicians will be closed by SB 863.

Under Labor Code 4616(b)(1), approval of an MPN by the DWC Administrative Director creates a “conclusive presumption on the part of the appeals board that the medical provider network was validly formed”.

Moreover, SB 863 has amended the MPN notice requirement to add language that an employer’s “failure to provide notice as required by this subdivision or failure to post the notice required by Section 3550 shall not be a basis for the employee to treat outside the network unless it is shown that the failure to provide notice resulted in a denial of medical care” (see Labor Code 4616.3(b)).

MPN coverage will now be a subject for expedited hearings. This issue will no longer tend to get buried only to be heard at disputes over provider lien claims years down the road.

Doctors who might otherwise consider “treating on a lien” might want to think twice. Doctors who are not in the MPN but decide to treat anyway will not be paid (see 4603(a)(3)).

But will a worker still be able to pay for their own treatment? Yes, according to Labor Code 4605, which provides that nothing shall “limit the right of the employee to provide, at his or her own expense, a consulting physician or any attending physicians whom he desires”.

However, 4605 has now been amended to include the following language:
“Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.”

And of course, under the scheme of SB 863, medical treatment disputes will be resolved solely through Independent Medical Review, not through the QME/AME process.

The sum change of all of these moving parts is that there will be way, way less attempts to do what apparently was done in Ms. Valdez’ case. The facts of the case appear to indicate that the lawyer attempted to “take medical control” by escaping the MPN.

So with SB 863, the Valdez case becomes much less significant.

Moreover, the change to Labor Code 4605 would seem to indicate that irregardless of how the California Supreme Court rules in Valdez in interpreting the pre SB 863 law, reports by non-MPN physicians can be considered albeit with the limitations stated in 4605.

Stay tuned.

Julius Young

Category: Medical treatment under WC