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Nov 26 2014

Is applicant entitled to select another physician within the MPN

Acosta v. Balance Staffing (BPD) (2014 Cal. Wrk. Com. LEXIS P.D. 480):

This matter proceeded to an expedited hearing on the issue of whether the applicant’s medical treatment had been terminated by the MPN Primary Treating Physician and whether the applicant is entitled to select another physician within the MPN, without resorting to the QME process. The matter was submitted without testimony.

The WCJ found that the Primary Treating Physician, within the MPN, issued a complete release of applicant from care, and that the procedure in LC §4616.3 (c) does not apply to allow the applicant to select a second and a third MPN physician. The panel QME process must be followed to resolve the dispute over whether the applicant is still in need of treatment.

Applicant filed a petition seeking reconsideration.

The applicant contended that the WCJ’s determination stating that you must follow the AME/QME dispute resolution process contained in LC §4062 after discharge from care by an MPN physician, was incorrect and that the applicant was entitled to select another MPN physician pursuant to LC §4616.3.

The issue brought before the WCAB was whether the applicant may follow the dispute resolution process through the MPN when the applicant is no longer in need of medical treatment or whether the applicant must follow the panel QME process and LC §4062.

The WCAB concluded that an MPN physician’s determination that an injured worker is no longer in need of medical treatment does not constitute a dispute over diagnosis or a recommendation for medical treatment. Therefore, the applicable Administrative Director rules mandate the parties follow the panel QME process to resolve the dispute over the physician’s determination, not the MPN dispute resolution process contained in LC §§4616.3 and 4616.4.

If the employer has created a valid MPN, the injured worker generally is limited to selecting their medical providers from within the employer’s network, absent a neglect or refusal to provide reasonable and necessary medical treatment as required by LC §4600. If an injured worker disputes either the diagnosis or the treatment prescribed by the treating MPN physician, pursuant to LC §4616.3 (c), the injured worker is entitled to seek the opinion of another physician from within the employer’s MPN.  Additionally, this section allows the injured worker to seek a third physician from within the MPN if the injured worker disputes the diagnosis or treatment prescribed by the second physician.

Contrast to that is Labor Code Section 4062 (a) which provides a separate dispute resolution process for disputes over a medical determination made by the treating physician concerning any medical issues not covered by Sections 4060 or 4061 and not subject to Sections 4610 and 4062.2 (b). This section requires the parties to select either an AME or utilize a panel QME to resolve the disputed medical issue, rather than allowing an injured worker to seek a change of physician to obtain different medical determination.

The WCJ, in this case, found the dispute resolution provisions of LC §4616.3 (c) are not applicable because the applicant was released from further treatment by the primary treating physician and there was no dispute over diagnosis or treatment prescribed by the treating physician.

The WCJ ruled that rule 9785(b)(3) mandates the use of the procedures set forth in Labor Code Sections 4061 and 4062 to resolve disputes over medical determination, which is defined in rule 9785(a)(4), including medical issues such as the decision whether to release an injured worker from care.

The WCJ’s determination that the applicant is precluded from seeking a second opinion physician from the employer’s MPN is based upon application of rule 9785, which defines the duties of the Primary Treating Physician, including a physician within the employer’s MPN and rule 9785(b)(3), which expressly provides the dispute over a medical determination by treating physician, including a determination that the employee should be released from care, must be resolved under the applicable procedures Sections 4061 and 4062.

In this case, the Board held that the MPN physician made a determination that recommended a complete discharge from care. Therefore this is a dispute that must be resolved with the applicable procedures in Section 4062.

Applicant is not entitled to rely upon rules that pertain to a change of treating physician which apply only when the dispute is over diagnosis or treatment prescribed by the treating physician.

A physician’s release of the injured worker from all further care cannot be equated with a dispute over diagnosis of medical condition or prescription for treatment of that condition.

Therefore the board concluded the parties must follow the dispute resolution process in LC §4062, and may not select another physician from within the MPN to resolve the dispute.

Accordingly, the WCJ’s decision was affirmed.

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