Valdez V. Warehouse Demo Services (Revisited After Reconsideration)

By Corey Ingber[i]



As we reported earlier, this WCAB En Banc decision had not yet been “cast in stone” as applicant’s attorney had, on 5/16/11, filed a petition for reconsideration and in response, on 7/14/11, the WCAB granted the petition.  Now, having reconsidered the arguments brought forth from the applicant, the WCAB has affirmed its earlier decision.

In further decision following reconsideration, the WCAB reflects that the impermissible securing of treatment outside of a validly established and properly noticed MPN, must by definition, involve a non-MPN physician, who cannot be deemed to be the PTP.  Therefore, the PTP in the MPN remains the PTP, even if the applicant otherwise decides          to treat outside of the MPN.  Also, the WCAB returns to the Tenet case, as supportive rationale for this decision.[ii]   

Medical treatment reports from unauthorized, out-of-network physicians are deemed inadmissible, provided the conditions of valid MPN establishment and proper notices have been met by the defendant.  This is because the out-of-network doctor is not the PTP,[iii] as defined under the statutes.

Remember, the limitation on admissibility here is to medical treatment reports made by a non-MPN physician in order to make findings for the intended purpose of determining the employee’s eligibility to receive compensation.  But, other reports from non-MPN physicians may remain admissible, including reports from UR physicians, subpoenaed treatment records, PQME’s and possibly others.


The limits of this decision still pose some remaining concerns.  For one thing, the WCAB has been clear to maintain that it is only the treatment reports and diagnosis reports from non-MPN physicians, which are rendered inadmissible.  So, does this present a potential “door ajar” for further mischief?  Seemingly, the answer should be “no,” since it is quite evident that if the applicant goes out of network, the actual treating reports from the non-MPN doctors are inadmissible and that would include diagnosis, need for care, modalities, nature and scope of treatment, etc.  But…the WCAB states on page 5, “However, while medical treatment and diagnosis issues must be resolved within the MPN, disputes concerning temporary disability or permanent disability are to be resolved outside of the MPN using the medical-legal procedures of sections 4061 and 4062. Therefore, section 4616.6 does not prevent an applicant from disputing the determination of the MPN PTP on the issues of temporary and permanent disability under sections 4061 and 4062.”

It seems as if the door is still potentially open because this decision leaves some doubt about what kind of non-MPN reports could come in, if not for treatment and diagnosis.  Therefore is it implied that the applicant can go out of network and obtain a consult from a non-treating MPN physician on issues other than treatment and diagnosis. The response should be “no” if we follow the Labor Code, since those issues must go down the   4061/4062 track, requiring a timely objection to the PTP, who under this case, would have to be the MPN based PTP. But, if the applicant went out and obtained a medical      report at their own expense, out of network, finding the applicant had impairment, would this be admissible as a consulting report?  Or, what if applicant’s attorney simply issues a subpoena duces tecum for the records of their own out-of-network MPN?  Are these admissible?  This decision seems to imply that they might be.   Are these records admissible if sent to an MPN based PTP who reviews and comments upon those findings?  Again, we don’t know.  What happens if the applicant is evaluated by an MPN PTP, who learns that the applicant went out of network and that physician “wants” to review those records?  Are they not part of that record and hence would become potentially admissible under this decision?  Again, we don’t know.

If we take a look at Labor Code 4062, it provides that by following the QME process, that “no other medical evaluation shall be obtained?  But, what if the evaluation was “obtained” prior to this process being activated?  What if applicant’s attorney portrays the examination as something other than “an evaluation?”  We know the applicant cannot obtain a comprehensive medical evaluation under the statutes, but what about obtaining a medical report simply to determine the nature of the physical condition, whether the applicant’s physical complains connects between the body parts, so the analysis is neither for treatment or for diagnosis, but rather to connect the “body part” dots between multiple body part allegations arising from a single injury?  What about an applicant getting an evaluation on an emergency basis for pain?

It would appear that this decision essentially covers the treatment and diagnosis issues and therefore we would therefore take the position that any issue relating to TD, PD and apportionment, should fall exclusively under Labor Code 4061/4062 and thus, no reports   from out-of-network physicians should be admissible on any of these issues.

Stay tuned, since it is highly likely a writ of review will be filed within the next 45 days.  As I said before, this decision is still not yet “cast in stone.”

[i] Copyright Corey A. Ingber 2011, all rights reserved

[ii] In Tenant/Centinela Hospital Medical Center v. WCAB (2000) 80 Cal. App. 4th, 1041, 65 CCC 477, it was held that there can only be one PTP at a time.  Therefore, when the applicant was discharged from care by the PTP, and she disputed those findings, applicant was not permitted to obtain a new PTP, without first going through 4061/4062, requiring potential AME or a PQME

[iii] Citing, 8 CCR 9785(b)(1), one treatment PTP at a time and Tenant.  (see decision of WCAB at page 7)


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