«

»

Oct 24 2014

Everything you want to know about MPN issues

MPN OUTLINE

I. General Sections:

The injured worker shall treat within the MPN if the employer:

• has a validly constituted MPN
• has met the access standards
• given all the proper notices
• In addition, the employer must have authorized medical treatment in a timely manner.

Pursuant to Labor Code§ 4616.3(a) if the injured employee notifies the employer of the injury or files a claim for workers compensation with the employer, the employer shall arrange an initial medical evaluation and begin treatment as required by Labor Code§ 4600. A failure to comply with this requirement will result in a loss of medical control.

Following an injury, if an employer fails to provide medical treatment within the MPN the employer will be liable for the employee’s self-procured medical care. If the employer’s conduct results in a failure to provide care or continued care the employee may self-procured treatment at the employer’s expense if the conduct results in a neglect or refusal to provide medical treatment.

Pursuant to Labor Code§ 4616.3(b) the employer:

• shall notify the employee of the existence of the medical provider network
• the employee’s right to change treating physicians and within the network after the first visit
• the method by which the list of participating providers may be accessed by the employer
• the employer shall notify the employee of the right to treated by a physician of his or her choice within the MPN.

If an authorized treating physician requests a referral to a specialist and the employer fails to make the referral the applicant can obatin the treatment outside the MPN.

Pursuant to Labor Code§ 4616.3(b):

• If the employer fails to give all the proper notices for the employee to treat outside the MPN the employee must show that the lack of notice resulted in a denial of medical care.

Therefore, there are two issues:

1. The first whether the defendant gave proper notice and
2. Whether the lack of notice resulted in a denial of medical care.

Martinez v. New French Bakery (BPD) (2013 Cal. Wrk. Comp. P.D. LEXIS 445):

The WCAB reversed the WCJ and held that defendant was not liable for medical treatment rendered applicant outside the MPN.

The WCAB ruled that failure to provide notice is not a basis to treat outside the MPN unless it is shown that the failure resulted in a denial of medical care. Proof that the lack of notice resulted in a denial of medical care is required to testify treatment outside the MPN.

Defendant has the burden of proof that the proper notices were given.

Applicant has the burden of proving that defendant’s breach of the MPN duty resulted in a refusal or neglect to provide medical treatment.

In this case the WCAB ruled the applicant failed to carry his burden of proof that the lack of notice resulted in a refusal or neglect to provide medical treatment when in this case defendant authorized surgery as requested by the applicant.

The WCAB would not infer that applicant’s failure to obtain shoulder surgery was because defendant did not have the requisite number of orthopedic surgeons within the requisite time and distance from applicant’s residence or workplace pursuant to rule 9767.5.

There can also be issues of loss of medical control within the MPN for failure to comply with the change of physician requirements or the requirements for a second or third opinion.

Additional issues can include transfer of care back to the MPN when the employer has denied the injury and later admits the injury and wishes the applicant treat within the MPN.

The issue of medical control is litigated at an expedited hearing.

How to prepare for the expedited hearing:

• Determine the issues regarding medical control.
• The evidence needed to present at the expedited hearing will depend on the issues raised by the applicant’s attorney as to why the defendant has lost medical control and the applicant can treat outside the MPN.
• The evidence is very different depending on the issue. For example the evidence to be introduced is different if the issue is lack of notice or transfer of care. The evidence is different if the issue is access to the MPN versus lack of notice.

The first item that needs to be determined in preparing for an expedited hearing on medical control is what is the issues regarding medical control. Once that is determined then you can use the guide below as to what evidence is necessary.

Pursuant to Labor Code§ 4616.3(a)(2) and (a)(3) if the applicant prevails at an expedited hearing on medical control the applicant can continue treatment with that physician at the employer’s expense. If the employer prevails at the expedited hearing all treatment of that physician as well any referrals that physician made are not the liability of the employer.

Labor Code§ 4603.2(a)(2) If the employer objects to the employee selection of the physician on the grounds that the physician is not within the medical provider network used by the employer, and there is a final determination that the employee was entitled to select a physician pursuant to Labor Code§ 4600 the employee shall be entitled to continue treatment with that physician at the employer’s expense. The employer shall be required to pay from the date of the initial examination if the physician’s report was submitted within five working days of the initial examination. If the physician’s report was submitted more than five working days after the initial examination, the employer and the employee shall not be required to pay for any services prior to date physicians report was submitted.

Labor Code§ 4603.2(a)(3) If the employer objects to the employee selection of the physician on the grounds that the physician is not within the medical provider network used by the employer and there is a final determination that the employee was not entitled to select a physician the medical provider network, the employer shall not have liability for treatment provided by or at the direction of the physician or for any consequences of the treatment obtained outside the network.

II. Medical Treatment disputes within the MPN:

Procedure when the defendant disputes a request for treatment from an MPN Physician:

When the defendant disputes a treatment request from an MPN physician they may, within five working days. Refer the matter to utilization review. The defendants must authorize any treatment approved by utilization review as defendants have no appeal rights to a utilization review determination. Defendants cannot request Independent Medical Review.

Defendants may object pursuant to Labor Codes§§ 4061 and 4062 and request a panel of Qualified Medical Evaluators to a finding of a MPN physician regarding issues of temporary disability, permanent disability, future medical treatment, parts of the body injured and permanent stationary status.

Procedure when the applicant disputes the opinion of the PTP regarding treatment issues:

The applicant for any reason may change treating physicians within the MPN. Therefore, if the applicant disputes the recommendations of the treating physician they can simply change to another treating physician within the MPN.

If applicant disputes opinion of PTP regarding medical treatment issues the applicant may elect to use the QME procedure: §9785 (b)(3) if the employee disputes a medical determination made by the primary treating physician including a determination that the employee shall be released from care The dispute shall be resolved under the applicable procedures set forth at Labor Code§§ 4061 and 4062.

If applicant disputes opinion of PTP regarding medical treatment issues the applicant may elect to use the procedures set forth in Labor Code§§ 4616.3 or 4616.4.

If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the MPN. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of the third physician in the MPN.

If after the third physician’s opinion, the treatment or diagnosis service remains disputed, the injured employee may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physician’s opinion in accordance with Section 4616.3

This is the old IMR procedure where the Administrative Director appoints IMR physician who may or may not examine injured worker at the physician’s option.

IV. Possible Issues:

1. MPN existence issues (validly constituted and approved by AD)
2. Treatment and change of treatment issues
3. Second and third opinion
4. Access standards are not met
5. Notice Requirements
6. Transfer of care back into the MPN
7. Pre-designation
8. Admissibility, payment and use of non-MPN reports.

V. MPN Existence: This issue will rarely be the subject of an expedited hearing. Pursuant
to Labor Code§ 4616(b)(1) if the MPN is listed on the Administrative Director’s website which the WCJ can take judicial notice of there is a conclusive presumption the medical provider network was validly created.

1. Labor Code §4616(b)(1) provides that upon a showing that the medical provider network was approved or deemed approved by the Administrative Director, there shall be a conclusive presumption on the part of the Appeals Board that the medical provider network was validly formed.
2. Defendants may meet their burden of proving that it has a properly established and noticed MPN by asserting that it has an approved MPN and requesting judicial notice of the inclusion of its MPN in the list of approved MPN’s on the Administrative Directors Web Site, and by offering unrebutted evidence that defendant provided the required notices. (Clifton v. Sears (2012) Cal. Wrk. P.D. LEXIS 1).

VI. Treatment and Change of Treatment Issues:
A. Treatment and Change of Physicians within MPN:
Following in injury, if an employer fails to provide medical treatment within the MPN the employer will be liable for the employee’s self-procured medical care.

Pursuant to Labor Code§ 4616.3(a) if the injured employee notifies the employer of the injury or files a claim for workers compensation with the employer, the employer shall arrange an initial medical evaluation and begin treatment as required by Labor Code§4600. A failure to comply with this requirement will result in a loss of medical control.

Following in injury, if an employer fails to provide medical treatment within the MPN the employer will be liable for the employee’s self-procured medical care.

If the employer denies the request for medical treatment because of a threshold issue the employee can self-procure treatment outside the MPN at their own risk.

The refusal of one physician to become the Primary Treating Physician will not allow the applicant to go outside the MPN if there are other physicians within the geographic area or willing to assume the role of primary treating physician. (See Gomez below).
If the defendant provides a list of physicians in the MPN, but none of those physicians are willing to treat the applicant it amounts to a denial of treatment and the applicant may treat outside the MPN. The Appeals Board also found in the same case employee was not required to contact every single physician on the list and if the applicant made a reasonable effort in this case calling five physicians and none would undertaker treatment that was sufficient to result in a denial of treatment by the defendants within the MPN. (See Gomez below)
B. Treatment and Change of Physicians within MPN § 9767.6.

(a) When the injured covered employee notifies the employer or insured employer of the injury or files a claim for workers’ compensation with the employer or insured employer, the employer or insurer shall arrange an initial medical evaluation with a MPN physician in compliance with the access standards set forth in Section 9767.5.

(b) Within one working day after an employee files a claim form under Labor Code §5401, the employer or insurer shall provide for all treatment, consistent with guidelines adopted by the Administrative Director pursuant to Labor Code §5307.27 and as set forth in title 8, California Code of Regulations §9792.20 et seq.

(c) The employer or insurer shall provide for the treatment with MPN providers for the alleged injury and shall continue to provide the treatment until the date that liability for the claim is rejected. Until the date the claim is rejected, liability for the claim shall be limited to ten thousand dollars ($10,000).

(d) The insurer or employer shall notify the employee of his or her right to be treated by a physician of his or her choice within the MPN after the first visit with the MPN physician and the method by which the list of participating providers may be accessed by the employee.

(e) At any point in time after the initial medical evaluation with a MPN physician, the covered employee may select a physician of his or her choice from within the MPN. Selection by the covered employee of a treating physician and any subsequent physicians shall be based on the physician’s specialty or recognized expertise in treating the particular injury or condition in question.

(f) A Petition for Change of Treating Physician, as set forth at Section 9786, cannot be utilized to seek a change of physician for a covered employee who is treating with a physician within the MPN.

VII. Second and Third Opinion §9767.7

(a) If the covered employee disputes either the diagnosis or the treatment prescribed by the primary treating physician or the treating physician, the employee may obtain a second and third opinion from physicians within the MPN. During this process, the employee is required to continue his or her treatment with the treating physician or a physician of his or her choice within the MPN.
(b) If the covered employee disputes either the diagnosis or the treatment prescribed by primary treating physician or the treating physician, it is the employee’s responsibility to:
(1) inform the person designated by the employer or insurer that he or she disputes the treating physician’s opinion and requests a second opinion (the employee may notify the person designated by the employer or insurer either in writing or orally);
(2) select a physician or specialist from a list of available MPN providers;
(3) make an appointment with the second opinion physician within 60 days; and
(4) inform the person designated by the employer or insurer of the appointment date.
It is the employer’s or insurer’s responsibility to:
(1) provide a regional area listing of MPN providers and/or specialists to the employee for his/her selection based on the specialty or recognized expertise in treating the particular injury or condition in question and inform the employee of his or her right to request a copy of the medical records that will be sent to the second opinion physician;
(2) contact the treating physician, provide a copy of the medical records or send the necessary medical records to the second opinion physician prior to the appointment date, and provide a copy of the records to the covered employee upon request; and
(3) notify the second opinion physician in writing that he or she has been selected to provide a second opinion and the nature of the dispute with a copy to the employee. If the appointment is not made within 60 days of receipt of the list of the available MPN providers, then the employee shall be deemed to have waived the second opinion process with regard to this disputed diagnosis or treatment of this treating physician.
(c) If, after reviewing the covered employee’s medical records, the second opinion physician determines that the employee’s injury is outside the scope of his or her practice, the physician shall notify the person designated by the employer or insurer and employee so the employer or insurer can provide a new list of MPN providers and/or specialists to the employee for his/her selection based on the specialty or recognized expertise in treating the particular injury or condition in question.
(d) If the covered employee disagrees with either the diagnosis or treatment prescribed by the second opinion physician, the injured employee may seek the opinion of a third physician within the MPN.
It is the employee’s responsibility to:
(1) inform the person designated by the employer or insurer that he or she disputes the treating physician’s opinion and requests a third opinion (the employee may notify the person designated by the employer or insurer either in writing or orally);
(2) select a physician or specialist from a list of available MPN providers; and
(3) make an appointment with the third opinion physician within 60 days; and
(4) inform the person designated by the employer or insurer of the appointment date. It is the employer’s or insurer’s responsibility to:
(1) provide a regional area listing of MPN providers and/or specialists to the employee for his/her selection based on the specialty or recognized expertise in treating the particular injury or condition in question and inform the employee of his or her right to request a copy of the medical records that will be sent to the third opinion physician; and
(2) contact the treating physician, provide a copy of the medical records or send the necessary medical records to the third opinion physician prior to the appointment date, and provide a copy of the records to the covered employee upon request; and
(3) notify the third opinion physician in writing that he or she has been selected to provide a third opinion and the nature of the dispute with a copy to the employee. If the appointment is not made within 60 days of receipt of the list of the available MPN providers, then the employee shall be deemed to have waived the third opinion process with regard to this disputed diagnosis or treatment of this treating physician.
(e) If, after reviewing the covered employee’s medical records, the third opinion physician determines that the employee’s injury is outside the scope of his or her practice, the physician shall notify the person designated by the employer or insurer and employee so the MPN can provide a new list of MPN providers and/or specialists to the employee for his/her selection based on the specialty or recognized expertise in treating the particular injury or condition in question.
(f) The second and third opinion physicians shall each render his or her opinion of the disputed diagnosis or treatment in writing and offer alternative diagnosis or treatment recommendations, if applicable. Any recommended treatment shall be in accordance with Labor Code section 4616(e). The second and third opinion physicians may order diagnostic testing if medically necessary. A copy of the written report shall be served on the employee, the person designated by the employer or insurer, and the treating physician within 20 days of the date of the appointment or receipt of the results of the diagnostic tests, whichever is later.
(g) The employer or insurer shall permit the employee to obtain the recommended treatment within the MPN. The covered employee may obtain the recommended treatment by changing physicians to the second opinion physician, third opinion physician, or other MPN physician.
(h) If the injured covered employee disagrees with the diagnosis or treatment of the third opinion physician, the injured employee may file with the Administrative Director a request for an Independent Medical Review.
VIII. Access Standards

The applicant can argue that the defendant lost medical control because defendant has not complied with the Labor Code and Rules regarding access standards. What evidence that will need to be presented will depend on the type of violation claimed. Defendants will have to introduce evidence to prove they complied with the access standards as outlined below.

1. Labor Code 4616 (a) (1) the number of physicians in the medical provider network shall be sufficient to enable treatment for injuries or conditions to be provided in a timely matter. The provider network shall include an adequate number and type of physicians, as described in Section 3209.3, or other providers, as described in section 3209.5, to treat injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and the geographic area where the employees are employed.

2. Labor Code§ 4616(a)(2) medical treatment for injury shall be readily available at reasonable times to all employees. With respect availability and accessibility of treatment, the administrative director shall consider the needs of rural areas, specifically those in which health facilities are located 30 miles apart in areas in which there is a healthcare shortage.

3. Labor Code § 4616 (a) (4), commencing January 1, 2014, every medical provider network shall post on its Internet Web site a roster of all treating physicians in the medical provider network and shall update the roster at least quarterly. Every network shall provide to the administrative director the Internet website address of the network and of its roster treating physicians. The administrative director shall post, on the division’s Internet website, the Internet website address of every approved medical provider network.

4. Labor Code § 4616(a)(5) commencing January 1, 2014, every medical provider network shall provide one or more persons within the United States to serve as medical Access assistance to help an injured employee find an available physician of the employee’s choice, and subsequent physicians if necessary under Section 4616.3. Medical Access assistance shall have a toll-free telephone number than injured employees may use and shall be available at least from 7 a.m. to 8 p.m. Pacific standard Time, Monday through Saturday, inclusive, to respond injured employees, contact physician’s offices during regular business hours, and schedule appointments.

5. §9767.5. Access Standards

(a) A MPN must have at least three physicians of each specialty expected to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and within the access standards set forth in (b) and (c).
(b) A MPN must have a primary treating physician and a hospital for emergency health care services, or if separate from such hospital, a provider of all emergency health care services, within 30 minutes or 15 miles of each covered employee’s residence or workplace.
(c) A MPN must have providers of occupational health services and specialists within 60 minutes or 30 miles of a covered employee’s residence or workplace.
(d) If a MPN applicant believes that, given the facts and circumstances with regard to a portion of its service area, specifically rural areas including those in which health facilities are located at least 30 miles apart, the accessibility standards set forth in subdivisions (b) and/or (c) are unreasonably restrictive, the MPN applicant may propose alternative standards of accessibility for that portion of its service area. The MPN applicant shall do so by including the proposed alternative standards in writing in its plan approval application or in a notice of MPN plan modification. The alternative standards shall provide that all services shall be available and accessible at reasonable times to all covered employees.
(e)(1) The MPN applicant shall have a written policy for arranging or approving non-emergency medical care for: (A) a covered employee authorized by the employer to temporarily work or travel for work outside the MPN geographic service area when the need for medical care arises; (B) a former employee whose employer has ongoing workers’ compensation obligations and who permanently resides outside the MPN geographic service area; and (C) an injured employee who decides to temporarily reside outside the MPN geographic service area during recovery.
(2) The written policy shall provide the employees described in subdivision (e)(1) above with the choice of at least three physicians outside the MPN geographic service area who either have been referred by the employee’s primary treating physician within the MPN or have been selected by the MPN applicant. In addition to physicians within the MPN, the employee may change physicians among the referred physicians and may obtain a second and third opinion from the referred physicians.
(3) The referred physicians shall be located within the access standards described in paragraphs (c) and (d) of this section.
(4) Nothing in this section precludes a MPN applicant from having a written policy that allows a covered employee outside the MPN geographic service area to choose his or her own provider for non-emergency medical care.
(f) For non-emergency services, the MPN applicant shall ensure that an appointment for initial treatment is available within 3 business days of the MPN applicant’s receipt of a request for treatment within the MPN.
(g) For non-emergency specialist services to treat common injuries experienced by the covered employees based on the type of occupation or industry in which the employee is engaged, the MPN applicant shall ensure that an appointment is available within 20 business days of the MPN applicant’s receipt of a referral to a specialist within the MPN.
(h) If the primary treating physician refers the covered employee to a type of specialist not included in the MPN, the covered employee may select a specialist from outside the MPN.
(i) The MPN applicant shall have a written policy to allow an injured employee to receive emergency health care services from a medical service or hospital provider who is not a member of the MPN.

Robles v. WCAB (W/D) 78 CCC 168
Applicant lives in Ventura, but his place of employment was Santa Monica. Defendant’s MPN has one spinal orthopedic PTP located within 15 miles or 30 minutes from applicant’s residence, but at least three orthopedic PTP located within 15 miles or 30 minutes of applicant’s workplace.
Applicant sought to treat outside the MPN. The matter proceeded to expediting hearing. Applicant argued that defendant’s MPN did not comply with the access standards because it did not provide a sufficient number of physicians within 15 miles or 30 minutes of applicant’s residence.
Relevant Regulations and code Sections:
9767.5(a) states: a MPN must have at least three physicians of each specialty expected to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and within the access standards set forth in (b) and (c).
9767.5(b) states: an MPN must have a PTP and a hospital for emergency health care services, or if separate from such hospital, a provider of all emergency health care services, within 30 minutes or 15 miles of each covered employee’s residence or workplace.
9767.5(c) states: a MPN must have providers of occupational health services and specialists within 60 minutes or 30 miles of the covered employee’s residence or workplace.
Labor Code §4016(a) (2) provides in part that medical treatment for injuries to be readily available.
Labor Code §4616 (a) (1) provides in part as follows: The number of physicians in the MPN shall be sufficient to enable treatment for injuries or conditions to be provided in a timely matter. The provider network shall include an adequate number and type of physicians, as described in Section 3209.3, or other providers, as described in Section 3209.5, to treat injuries experienced by injured employees based on the type of occupation or injury in which the employees engaged, and the geographic area where they employees are employed.
4616 (g) requires the AD, in consultation with the Department of Health Care. to adopt regulations implementing this article which includes Labor Code §(a)(2).
The WCJ stated while the court agreed, such an interpretation would allow for better access to medical care, especially in this case where the injured employee lives approximately 50 miles away from the workplace, the plain meaning of the words in the regulation do not permit such an interpretation. The subsection sets forth certain conditions, which if met, satisfy the mandate of the regulation. Rule 9767.5 mandates an MPN have three primary treating physicians within 30 minutes or 15 miles of each employee’s residence or workplace. The use of the conjunction “or” is indicative of the use of an option for purposes of meeting the conditions of the regulation. The regulation is directed to the employer/carrier as to MPN’s access specification. It does not speak to provide any option to the injured employee in that regard. The regulation was intended to require the MPN to provide physicians within the mileage/time specifications for both the residents and the workplace then presumably the conjunctive “and” would have been utilized in drafting the regulation.
The WCJ found that defendant’s MPN was in compliance with the access standards set forth in Section 9767.5(a) and (b) because the MPN had three orthopedic surgeons located in within 15 miles of applicant’s workplace. Applicant filed a petition for reconsideration. The applicant argued that for defendants MPN to be in compliance they must provide a minimum of three physicians within 15 miles or 30 minutes of applicant’s residence, rather than only within 15 miles or 30 minutes from his workplace.
Sub-section (c) which is the most lenient in terms of minute/mileage requirements was not at issue. Since the utilization of a primary treating physician is at issue, the more restrictive sub-section (b) was the focus of the case.
The effect in this case being that if the injured employee chooses the mandate to apply to his residence within the MPN does not meet the requirement of this section.
The WCJ indicated that while it can certainly be argued that requiring an employee to travel 47 to 50 miles to get treatment does not meet the “readily available” requirement, the issue of whether regulation Sections 9767.5(a)(b) adequately implement the “readily available” requirement from Labor Code §4616(a) (2) was not specifically raised as an issue in this case at the time a trial.
The WCAB granted reconsideration and adopted and incorporated the judge’s report. The WCAB additionally noted there appeared to be a conflict between the relevant statutory and regulatory law.
Specifically, the WCAB observed in pertinent part that Labor Code §4616 (a) (1) in part states that the number of physicians in MPN shall be sufficient to enable treatment for injuries or conditions to be provided in a timely manner. The provider network shall include an adequate number and type of physicians, as described in Section 3209.3, or other providers, as described in Section 3209.5, to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed.
The WCAB concluded, to the extent that Regulation 9767.5(b) exceeds the scope of Labor Code §4616(a) (1), the statute is controlling. The WCAB noted that the defendant complied with Labor Code §4616(a) (1) requirement that its MPN maintain an adequate number and type of physician to treat injuries within the geographic area where the applicant was employed.
Yet, while Section 4616(a)(1) only requires that an MPN include an adequate number and type of physicians to treat within the geographic area where the employees are employed, A.D. rule 9767.5(b) expands that provision to require the appropriate number of physicians within 30 minutes or 15 miles of the employee’s “resident or workplace”.
However, regulations must be within the scope of the authority conferred by the statute and reasonably necessary to effectuate the purpose of the statute.
The writ was denied.

IX. Notice Requirements

This is the most common dispute for an expedited hearing. Defendants will have to have all the proper notices as outlined below to be offered into evidence. They may also need the testimony of an adjuster to prove that the notices were sent and when they were sent. Remember, the lack of notice does not result in a right to treat outside the MPN unless it resulted in a denial of medical treatment. The attorney has to be prepared to litigate fourth issues.

Many notices must be sent by the employer regarding MPN. This makes notices the most difficult issues regarding medical control. There are notices on implementation, notices on date of hire, notices when injury occurs or treatment is commenced, or when the applicant is transferred into the MPN. The failure to give the notice to be able to pre-designate also can result in a loss of medical control.

Therefore the opportunity for mistakes is gigantic. If the employer fails to give notice, the notices later inadequate it could result in the loss of medical control.

Proof of notice for a hearing initial and notice when notice of injury received:

Initial notice can be proven at trial by the receipt of information receipt about MPN’s usually signed by the applicant when new employee information is given upon hire.

The proof of notice after injury can be proven by a list of documents sent to the applicant, who sent them, method sent and copy of all documents sent offered into evidence. A witness maybe need on this issuel

In addition the letter to the applicant’s attorney regarding the MPN shows notice.

The leading case on notice is the en banc decision in the case of Knight v. United Parcel Service (71 CCC 1423). The case held that the employer’s failure to provide the required notice of the applicant’s rights under the MPN resulted in a neglect or refusal to provide reasonable medical treatment and allow the applicant to self-procure the treatment.

Knight held that not every violation of MPN notice requirements constitutes neglect or refusal to provide reasonable medical treatment. Without a determination that defendant’s failure to give proper notice constituted neglect or refusal to provide reasonable medical treatment, applicant is not entitled to reimbursement for the cost of self-procured treatment.
The panel noted that the WCJ did not specifically explain how defendant failed to provide the appropriate notices. Though defendant provided evidence that it provided the notices, the panel was concerned about the WCJ’s assessment that the notices alone were not enough. As noted by the commissioners:
Contrary to the implication in the WCJ’s Report, defendant is not required, as part of its burden, to offer witnesses to testify that applicant received the notices addressed to her, or to obtain a stipulation from applicant that she received them. Defendant met its initial burden by offering proof of the notices. Applicant did not testify or offer any other evidence that she did not receive them.
Finally, the commissioners rejected the applicant’s “hyper-vigilant” interpretation of defendant’s burden of proof on these issues and observed:
However as outlined above a failure notice will not result in a loss of medical control unless the lack of notice resulted in a denial of medical treatment.

1. Generally:

A. Labor Code 4616.3 (b) provides that the employer must notify the employee of the existence of the medical provider network, the right to change treating physician within the network after the first visit and the method by which the list of participating providers may be accessed by the employee.

B. Notice is required under the following situations:

1. implementation notice (when the network is created)
2. implementation notice when employee is hired
3. Complete MPN notification when there is a work-related injury or the applicant begins treating in the network for the first time for another reason
4. When the employer decides to terminate an MPN
5. When the employer switches from one MPN to another.

C. Notice regarding the MPN must be posted in the workplace.

D. The most common notice issue in litigation is failure to give proper notice upon notice of injury and new hires.

E. Another very common notice issue is when defendants wish to transfer care back into the MPN and the notice as required to successfully accomplish transfer back to the MPN are outlined below.

F. Notices need to be provided in English and Spanish to Spanish-speaking employees.

G. The regulations allow for notices to be transmitted to employees electronically were possible.

H. Implementation notices are allowed to be sent by mail or included within employee’s pay stub her paycheck. The notice may also be sent electronically, such as by an email if the employee has access to email at work to receive this notice prior to the implementation of the MPN.

I. If the employer provides all MPN notices the employee must treat within the MPN for any industrial injury.
2. §9767.12. Employee Notification:
(a) An employer or insurer that offers a Medical Provider Network Plan under this article shall notify every covered employee in writing about the use of the Medical Provider Network prior to the implementation of an approved MPN. An implementation notice shall also be provided to a new employee at the time of hire. An implementation notice is not required if the MPN Applicant or insured employer is changing from one MPN to another MPN within 60 days. The MPN implementation notice shall be provided in English and also in Spanish, to Spanish-speaking employees. The written MPN implementation notice to all covered employees shall, at a minimum, include the following information:

(1) That medical treatment for new work injuries will be provided through the Medical Provider Network as of the effective date of coverage unless the employee properly predesignates a physician or medical group prior to injury;

(2) The effective date of coverage under the new MPN;

(3) That existing work injuries may be transferred into the new MPN. The worker should check with the worker’s claims adjuster for more information;

(4) That more information about the MPN can be found on the workers’ compensation poster or by asking your employer.

(b) The following language may be used for the written MPN implementation notice provided to covered employees: “Unless you predesignate a physician or medical group, your new work injuries arising on or after will be treated by providers in a new Medical Provider Network, . If you have an existing injury, you may be required to change to a provider in the new MPN. Check with your claims adjuster. You may obtain more information about the MPN from the workers ‘compensation poster or from your employer.”

(c) The MPN implementation notice may be provided by mail or included on or with an employee’s paystub, paycheck or distributed through electronic means, including email, if the employee has regular electronic access to email at work to receive this notice prior to the implementation of the MPN. If the employee cannot receive this notice electronically at work within the required time frame, then the employer shall ensure this information is provided to the employee in writing prior to the implementation of the MPN.

(d) Separate from the MPN implementation notice, a complete written MPN employee notification with the information specified in subdivision (f) of this section about coverage under the MPN shall be provided to covered employees at the time of injury or when an employee with an existing injury begins treatment under the MPN. This MPN notification shall be provided to employees in English and also in Spanish to Spanish speaking employees. Before MPN coverage is implemented, the complete written MPN employee notification shall also be posted in both English and Spanish in a conspicuous location frequented by employees during the hours of the workday and in close proximity to the workers’ compensation posting required under section 9881.

(e) The complete MPN notification may be distributed through electronic means, including email, if the covered employee has regular electronic access to email at work to receive this notice at the time of injury or when the employee is being transferred into the MPN. If the employee cannot receive this notice electronically at work, then the employer shall ensure this information is provided to the employee in writing at the time of injury or when the employee is being transferred into the MPN.

(f) The complete written MPN employee 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 to answer questions about MPNs and to address MPN problems. The employer or insurer shall provide a toll-free telephone number with access to the MPN Contact if the MPN geographical service area includes more than one area code;

(2) A description of MPN services;

(3) How to review, receive or access the MPN provider directory. An employer or insurer shall ensure covered employees have access to, at minimum, a regional area listing of MPN providers in addition to maintaining and making available its complete provider listing in writing. If an employee requests an electronic listing, it shall be provided electronically on a CD or on a website. If the provider directory is also accessible on a website, the URL address shall be listed with any additional information needed to access the directory online. All provider listings shall be regularly updated, at minimum, on a quarterly basis with the date of the last update provided on the listing given to the employee, to ensure the listing is kept accurate. Each provider listing shall include a phone number and an email address for reporting of provider listing inaccuracies. If a listed provider becomes deceased or is no longer treating workers’ compensation patients at the listed address the provider shall be taken off the provider list within 60 days of notice to the MPN network administrator.

(4) How to access initial care and subsequent medical care;

(5) The mileage, time requirements and alternative access standards required under section 9767.5;

(6) How to access treatment if (A) the employee is authorized by the employer to temporarily work or travel for work outside the MPN’s geographical service area; (B) a former employee whose employer has ongoing workers’ compensation obligations permanently resides outside the MPN geographical service area; and (C) an injured employee decides to temporarily reside outside the MPN geographic service area during recovery;

(7) How to choose a physician within the MPN;

(8) What to do if a covered employee has trouble getting an appointment with a provider within the MPN;

(9) How to change a physician within the MPN;

(10) How to obtain a referral to a specialist within the MPN or outside the MPN, if needed;

(11) How to use the second and third opinion process;

(12) How to request and receive an independent medical review;

(13) A description of the standards for the transfer of care policy and a notification that a copy of the policy shall be provided to an employee upon request; and

(14) A description of the standards for the continuity of care policy and a notification that a copy of the policy shall be provided to an employee upon request.

(g) At the time of the selection of the physician for a third opinion, the covered employee shall be notified about the Independent Medical Review process. The notification shall be written in English and also in Spanish to Spanish speaking employees.
3. §9767.16. Notice to Employee Upon Termination, Cessation of Use, or Change of Medical Provider Network
(a) The Medical Provider Network Applicant is responsible for ensuring that each injured covered employee is informed in writing of the MPN policies under which he or she is covered and when the injured employee is no longer covered by the Applicant’s MPN. The MPN Applicant shall ensure each injured covered employee is given written notice of the date of termination or cessation of use of its MPN. The written notice shall be provided to injured covered employees prior to the effective date of termination or cessation of use of the Applicant’s MPN. The notices required by this section shall be provided in English and also in Spanish to Spanish speaking employees.

(1) The MPN Applicant whose MPN is being terminated or will cease to be used shall ensure that every injured covered employee is provided the following information prior to the termination or cessation of use of its MPN by a MPN Applicant or an insured employer:

(A) The effective date of termination or cessation of use of the Applicant’s MPN.

(B) Whether the MPN will still be used for injuries arising before the date MPN coverage ends.

(C) The address, telephone number, email address and an MPN website, (optional), of the MPN Contact who can address MPN questions.

(D) For periods when an employee is not covered by a MPN, an employee may choice a physician 30 days after the date the employee notified the employer of his or her injury.

(E)(2) The following language may be provided in writing to injured covered employees to give the required notice of termination or cessation of use of a MPN: “The Medical Provider Network (MPN) will no longer be used for injuries arising after . You will/will not

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>