**************************************4600 (c) & 3550*****************************************************

Although the ultimate decision on this dispute will come from the Workers’ Compensation Administrative Law Judge (“WCJ”), I would agree with Dr. Galla’s position that the employer has lost medical control:

Labor Code section 3551 (a) states in relevant part:

“Every employer subject to the compensation provisions of this code… shall give every new employee, either at the time the employee is hired or by the end of the first pay period, written notice of the information contained in Section 3550.” (Emphasis Added)

I have carefully questioned this patient about whether or not he has ever received the information contained in the section 3550’s “Employee Notification,” which must be written in Spanish (his only language) and English. He claims to have never have received such information from his employer at the time of hire. Furthermore, he also has stated that there is no “Employee Notice” in Spanish posted in a conspicuous place at this work place.

Therefore, unless the employer has proof that the patient’s statements to me were not truthful, it would appear that the patient was free to select a personal physician per Labor Code section 3550 (d), which states in relevant 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: 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 (he 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 appear that the procured chiropractic care within the first 30 days should be allowed.

******************************** MPN ************************************************************

Secondly, your contention that Great America has an MPN is news to me and the patient. As you know, if Great America has implemented an approved MPN, it was the employer’s duty to PROVIDE NOTIFICATION to the patient BEFORE the industrial injury occurred. Your employer (according to the patient – see his letter) failed to give such notification. More explicitly, Title 8 CCR section 9767.12 (a) states:

"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. The initial written notification shall include the following information:

(1) How to contact the person designated by the employer or insurer to be the MPN contact for covered employees. The employer or insurer shall provide a toll free telephone number if the MPN geographical service area includes more than one area code;

Again, your employer has completely failed to comply with this regulation and, we believe, has LOST THE RIGHT TO CONTROL MEDICAL CARE.

The contention of lost medical control secondary to failure to give or post proper notification has recently been supported in the WCAB panel decision of Metoyer v. Wilshire West Dental; Zenith Ins. Co. (2005) 34 CWCR 14 in which the WCAB commissioners upheld the WCJ’s decision to award medical care provided by a medical facility that was NOT within the insurer’s MPN because of failure to comply with Labor Code § 3550. The commissioners further reasoned that a violation of Title 8 CCR 9767.12 would also constitute loss of control. More explicitly, the commissioner’s stated,

"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 herein may be justified."

Technically, the requested physical therapy with Evergreen has pasted the time allotment mandated by Sandhagen vs. Cox and Cox communication (2004) 69 CCC 1542 and UR opinion will not count. Please authorize this outside PT immediately.

**********************************************************************************************

Metoyer v. Wilshire West Dental; Zenith Ins. Co. (2005) LBO 368875

As stated before, it is our belief that the employer failed to properly advise this patient of their wishes to place him in an MPN per Labor Code § 4616.2(c) and Title 8 CCR § 9767.12(a). Furthermore, the patient has stated that he never saw any of the required workers’ compensation notifications and declarations per Labor code §§ 3550, and 3551. Therefore, it is our belief that the employer has lost medical control. This contention has recently been supported in the WCAB panel decision of Metoyer v. Wilshire West Dental; Zenith Ins. Co. (2005) LBO 368875 in which the WCAB commissioners upheld the WCJ’s decision to award medical care provided by a medical facility that was NOT within the insurer’s MPN because of failure to comply with Labor Code § 3550. The commissioners further reasoned that a violation of Title 8 CCR 9767.12 would also constitute loss of control. More explicitly, the commissioner’s stated, "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 herein may be justified."

********************************************** Initial Warning *******************************************************

Also noteworthy is the contention that the employer has failed to provide the mandatory MPN notice per Title 8 CCR § 9767.12, as well as comply with posting notices per Labor Code § 3550. As noted in the recent WCAB panel decision of Metoyer v. Wilshire West Dental; Zenith Ins. Co. (2005) LBO 368875, the employer may well have last their right to control medical care within their MPN.