MPN Dispute

MEDICAL PROVIDER NETWORK DISPUTE:

There is evidence in the medical file that this panel Qualified Medical Evaluation ("QME") has arisen, in part, secondary to a dispute over the patient’s procurement of chiropractic treatment outside of the employers Medical Provider Network ("MPN").

Although the ultimate decision over said dispute shall be made by the Worker's Compensation Administrative Law Judge ("WCJ"), I would like to offer my medical-legal opinion on the matter as a chosen panel QME, which is based upon my lay interpretation of the code, regulations and medical records in my procession.

If the insurer or employer would like to offer any further evidence (employee file records from the employer) that may affect my opinion, I would be more than happy to adopt and incorporate any pertinent information in the form of a short supplement report.

#1) Labor Code section 3550 problem:

During my patient interview, I first explained my lay interpretation of the LC 3550 posting requirements and then gave here a copy (from the DWC’s website) of what these postings should look like. Then, I asked the patient whether or not she had ever seen the mandatory Employee Notice posted at work in a conspicuous place. The patient stated confidently that she had never seen such a notice before.

#2) Labor Code section 3551 problem:

I asked the patient if she had ever received the Employee Notice in Spanish writing (as mandated by labor code 3551) at the time of her hirer with this employer. The patient adamantly denied ever receiving such a Notice in written Spanish.

#3) CCR section 9767.12 problem:

Finally, after explaining my lay interpretation of the new law on employer medical control via a Medical Provider Network (“MPN”) I asked the patient if she was ever notified prior to the industrial injury that she had been inducted into the employer’s MPN. She stated that she was never informed, by any means, especially in written Spanish, that she was inducted into the employer's MPN. She claims to be 100% positive of this.

CONCLUSION :

Based upon the information in my medical file, and the patient’s statements that (1) the employer did not have the Employee Notice posted at work in a conspicuous place at the time the patient was injured; (2), the employer failed to give the patient the Employee Notice, in written Spanish, at the time of hire and (3) the employer failed to give either verbal or written Spanish notification that the patient was inducted into a employer-controlled MPN before the industrial injury occurred, it is my opinion that the patient has procured proper medical and chiropractic treatment outside of the employer’s MPN.

SUPPORT OF CONCLUSION:

In order to support my foregoing medical-legal opinion, I offer the following two arguments:

A. ) Labor Code section 3550 subdivision (d) clearly describes the penalty for an employer's failure to comply: the employer loses medical control. More explicitly, the section states in pertinent part, “Failure of an employer to provide the notice required by this section [3550] shall automatically permit the employee to be treated by his or her personal physician with respect to an injury occurring during that failure.” (Emphasis Added)

I would further offer the recent WCAB panel decision of Metoyer in support of my position that the Employer may well have lost medical control for failure to post the Employee Notice:

In Metoyer v. Wilshire West Dental; Zenith Ins. Co. (2005) 34 CWCR 14, the WCAB commissioners upheld the WCJ’s decision to award medical care that was outside of the insurers medical control secondary to the failure of the employer to comply with section 3550 (employer failed to post the “Employee Notice”). In relevant part, the commissioners stated the forthcoming in their Opinion and Order Denying Petition for Reconsideration:

"Absent proof that defendant complied with this notice requirement [section 3550], it would appear that the applicant would be entitled to be treated by his/her personal physician with respect to an injury occurring during the time that there was a failure to post the required notice. We see no ambiguity in application of this provision."

Therefore, it would seem clear that the legislatures intended for the employer to lose medical control if section 3550 was not followed.

B. ) Cal. Code Regs., tit. 8, section 9767.12, subdivision (a) makes it very clear that the employer MUST notify the employee, in written Spanish and English, of his/her induction into an MPN both before an injury occurs and after the injury occurs. More explicitly, administrative rule 9767.12 (a) states in relative part:

"An employer or insurer that offers a Medical Provider Network Plan under this article shall notify each covered employee in writing about the use of the Medical Provider Network 30 days prior to the implementation of an approved MPN, at the time of hire, or when an existing employee transfers into the MPN, whichever is appropriate to ensure that the employee has received the initial notification. The notification shall also be sent to a covered employee at the time of injury. The notification(s) shall be written in English and Spanish.”

Unlike Labor Code section 3550, there is no described consequence for failure to comply. However, the commissioners in the Metoyer opinion went out of there way to opine that failure to comply with 9767.12 would also result in an Employer loss of medical control. More explicitly, the WCAB panel stated in relevant part:

"Additionally we note that AD rule 9767.12 provides for required notices to be given prior to an injury, specifically written notice of a medical provider network under Labor Code section 4616.3 prior to the implementation of an approved MPN, at the time of higher, or when an existing employee transfers into the MPN. While specific consequences for a failure to provide required notice are not described in AD Rule 9767.12, when coupled with the aforementioned Labor Code section [section 3550(e)], the consequences [which was loss of Medical Control with the MPN] herein may be justified."

Conclusion : I would agree with the commissioner’s opinion in Metoyer that without employer proof that demonstrates compliance with Labor Code sections 3550, 3551, and CCR section 9767.12 (a), an injured worker may well be free to treat outside of an MPN.

In this case, I have no proof (as of yet) that the employer complied with LC 3550, LC 3551 or CCR 9767.12; I only have the patient’s statements that she was never notified, and the information that the claims administrator offered to send my. Therefore, I can only conclude that the procured treatment outside of the employers/insurers MPN was justified and should be paid for.

Again, if the employer would like to submit proof of compliance to contradict the patient’s statement to me, I’d be happy to generate a supplement report and discuss this further; however, as stated above, the ultimate decision on this issue will be up to the WCJ.

LOSS OF MEDICAL CONTROL IN ACCORD WITH BRAEWOOD:

In this case, the patient also claims to have reported the injury and requested medical care on at least four separate occasions and was flat-out denied access to care. More explicitly, the patient alleges that after asking for medical care, she was told by the supervisor to get a massage, given medication and a back support, and then told by the general manager to go to the hospital and use her Medi-Cal card and not report the injury as industrial. If the patient’s contentions are true, there was clearly unwillingness by the employer to direct medical care.

In Braewood Convalescent Hospital v. W.C.A.B. and Bolton(1983) 48 C.C.C. 566 (Supreme Court En Banc), Supreme court of California ruled that if an employer fails to direct medical care, then they the right to control medical care and are liable for any self-procured medical care that related to the industrial injury. More explicitly, the Justices stated:

“Section 4600 requires more than a passive willingness on the part of the employer to respond to a demand or request for medical aid. [References omitted]. This section requires some degree of active effort to bring to the injured employee the necessary relief. Upon notice of the injury, the employer must specifically instruct the employee what to do and whom to see, and if the employer fails or refuses to do so, then he loses the right to control the employee's medical care and becomes liable for the reasonable value of self-procured medical treatment. [References omitted.]”

Therefore, unless the patient’s allegations are false, it would seem the employer has again lost medical control via the Braewood.

Final Comment : In this case, I have no proof (as of yet) that the employer complied with LC 3550, LC 3551 or CCR 9767.12; I only have the patient’s statements that she was never notified, and the information that the claims administrator offered to send me in my records packet. Therefore, based upon all of the above, I can only conclude that the procured treatment outside of the employers/insurers MPN was justified and should be paid for.

MEDICAL PROVIDER NETWORK DISPUTE:

#1) Labor Code section 3550 problem:

During my patient interview, I asked the patient whether or not she had seen the mandatory Employee Notice (as mandated by labor code 3550) posted on a wall at work in a conspicuous place. The patient stated confidently that she had never seen such a notice.

#2) Labor Code section 3551 problem:

#3) CCR section 9767.12 problem:

Finally, I asked the patient if she was ever notified prior to the industrial injury that she had been inducted into the employer’s MPN. She stated that she was never informed, by any means, especially in written Spanish, that she was inducted into the employer's MPN. She claims to be 100% positive of this.

Therefore, assuming that the patient is correct in her contention that the employer has failed their “notification duties” per CCR 9767.12 (a) and Labor Code sections 3550 and 3551, it would seem that the employer has indeed lost medical control and the patient has properly procured medical care outside of the employer’s MPN with Dr. Fernando Luque, DC.

In order to support my foregoing medical-legal opinion, I offer the following three arguments:

I would further offer the recent WCAB panel decision of Metoyer in support of my position that the Employer may well have lost medical control for failure to post the Employee Notice:

Therefore, it would seem clear that the legislatures intended for the employer to lose medical control if section 3550 was not followed.

"An employer or insurer that offers a Medical Provider Network Plan under this article shall notify each covered employee in writing about the use of the Medical Provider Network 30 days prior to the implementation of an approved MPN, at the time of hire, or when an existing employee transfers into the MPN, whichever is appropriate to ensure that the employee has received the initial notification. The notification shall also be sent to a covered employee at the time of injury. The notification(s) shall be written in English and Spanish.”

In this case, I have no proof (as of yet) that the employer complied with LC 3550, LC 3551 or CCR 9767.12; I only have the patient’s statements that she was never notified. Therefore, I can only conclude that the procured treatment outside of the employers/insurers MPN was justified and should be paid for.

If the employer would like to submit proof of compliance to contradict the patient’s statement to me, I’d be happy to generate a supplement report and discuss this further; however, as stated above, the ultimate decision on this issue with be up to the WCJ.