Workers Comp Zone


The long-awaited Valdez decision is finally here.

In a November 2013 decision, the California Supreme Court handed a victory to injured workers in that it rejects the notion that California statutes only allow reports of network MPN doctors into evidence in benefit disputes.

That was essentially the position of the California Workers Compensation Appeals Board, which held in an July 14,2011 en banc decision that where unauthorized medical treatment is obtained outside a validly established and properly noticed Medical Provider Network (MPN), reports from the non-MPN doctors are inadmissible.

In so holding the statewide WCAB was dealing with a situation in which the applicant attorney obviously tried to take “medical control” by sending the worker to a doctor of the lawyer’s choice, a doctor who was not on the Medical Provider Network adopted by the employer.

This is a strategy often employed in Southern California, where many attorneys refer workers to non-MPN doctors who have been willing to treat.
Often those doctors would treat “on a lien”, with the result being a primary factor in a huge lien backlog at many Southern California WCAB district offices. The strategy has not been used so much in Northern California, since the pool of doctors willing to treat under such arrangements has historically been much smaller north of Fresno.

By “taking medical control”, the worker’s attorney could often get reports that served as a basis for temporary disability payments or even as a basis for rating permanent disability. Proponents of this approach asserted that friendly doctors would order the requisite tests, often bypassing the treatment denials that plagued other workers.

Opponents cited the costs of this approach, complaining that some doctors had cozy relationships with attorneys, ordering every diagnostic test known to modern medicine, running up huge bills in the process.

So all of this was fodder for the 2012 legislative fix known as SB 863.

Trying to create a patch to prevent this, SB 863 did three things. First, it tightened up the law on MPNs in various ways. Labor Code 4603.2(a)(3) makes it clear that where a worker impermissibly treats outside the MPN, the employer will not be liable for treatment costs. MPN validity is now an issue to be decided by expedited hearing. Second, Labor Code 4605 was amended to limit the effect of reports by unauthorized non-network physicians. While the employee may still get at his or her own expense a consulting or attending physician, 4605 now provides in part that “Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation”. Third, lien procedural hurdles were enacted.

Some of the lien provisions of SB 863 are currently in doubt, but the other two provisions make the “medical control” strategy significantly riskier than before.

So after the enactment of SB 863, some may find the Supreme Court’s Valdez decision anti-climactic.

As the Supreme Court decision notes, “These statutory changes may encourage employees to use MPN services. However, they do not foreclose other avenues of treatment, or bar the Board from considering medical reports generated outside of an MPN when it reviews applications for disability benefits.”

The en banc WCAB decision was troubling.

One could easily imagine situations where a workers’ comp judge should be able to consider the opinion of worker-obtained non-network doctors.

Perhaps a worker obtained such opinion at his or her own expense, having diagnostic tests that were not authorized through the MPN. Perhaps the worker pursued tests or treatment outside the utilization review/Independent Medical review gauntlet that currently seems so dysfunctional. Those tests and treatments may have yielded critical information.

And at the end of the day, a worker should be able to present some evidence of his or her choice on her own case.

The pendulum may have swung towards cookie-cutter justice, but the result in Valdez allows some daylight for workers’ and their attorneys.

The court’s opinion in Elayne Valdez v. Workers’Compensation Appeals Board and Warehouse Demo Services can be found here:

The WCAB’s en banc decision in Valdez can be seen here: … ldezE2.pdf

Julius Young

Category: Medical treatment under WC