WCAB En Banc Decision Rules Medical Reports From Non-MPN Physicians Are Inadmissible
WCAB EN BANC DECISION RULES
MEDICAL REPORTS FROM NON-MPN PHYSICIANS ARE
INADMISSIBLE AND MAY NOT BE RELIED UPON TO AWARD COMPENSATION
In a decision which can only be characterized as “stunning,” the WCAB has filed an En Banc Decision after Reconsideration in the case of Elayne Valdez v. Warehouse Demo Services, declaring that the medical reports of non-MPN physicians are neither admissible before the WCAB nor can they be relied upon either to award medical treatment or compensation, including TD and PD.
In a “nutshell,” this holding can be distilled to this:
- If the defendant has a validly established and properly noticed MPN, then medical reports from any out-of-network or non-MPN physician are now inadmissible and may not be relied upon to support any WCAB award either for medical treatment or compensation, including T.D.
- The defendants are not liable for the cost of the out-of-network medical treatment rendered by a non-MPN provider.
- The defendants are not liable for the cost of any medical report from an out-of-network primary treating physician. This would also include any charges for review of records, diagnostic tests, X-rays, MRI’s, laboratory work, etc., since they are not recoverable expenses under this decision.
- If the applicant goes outside a validly established and properly noticed MPN, the selected physician is not the PTP and this improper selection does not otherwise change the status of any prior MPN treating physician, who remains the PTP.
- This decision recognizes that the Labor Code currently provides the applicant with two important remedies within the MPN: (1) Free choice to any physician within the MPN; and (2) Second and third opinions from a physician within the MPN for issues relating to diagnosis or medical treatment, followed by Independent Medical Review (IMR).
- Neither Labor Code Sections 4605 nor 5703(a) dealing with so-called “consulting, attending, or examining physicians” can be used to support or justify the admission into evidence of medical reports from non-MPN physicians who are treating impermissibly outside of the MPN
ANALYSIS BY COREY INGBER:
This decision looks like a potential “game changer” at least in the near short term. For one thing, if we are getting reports, billings and liens from the notorious out-of-network treating physicians, the so-called sleep, pain and psychiatric “multi-specialty clinics” and the prolific self-procuring orthopedic and chiropractic physicians, then we know that if we have a validly established and noticed MPN, that: (1) The medical reports and other offerings from these facilities are “out”; (2) We have no liability either for the costs of the treatment or for the expenses associated with the preparation of the medical reports; (3) These inadmissible medical reports cannot later be “shoehorned” into evidence under the guise of an examining, consulting or attending physician under Labor Code sections 4605 or 5703. This is all good.
But, you should expect that once this decision is fully digested and studied by CAAA, they will surely come up with some creative strategies for launching potential “end runs” around and collateral attacks upon this case decision, since this has been the modus operandi since the very advent of SB 899 reforms.
WHAT TO EXPECT NOW:
Here is my take:
- WHAT ABOUT THAT NOTICE TO EMPLOYEE POSTER?: Expect nearly every applicant attorney to now automatically demand a copy of the “Notice Poster” which as of October, 2010 was changed and amended by the DWC, to include additional language and some deletions from the prior notice poster. (Labor Code section 3550). For any employer who does not have the latest revised Notice to Employee Poster in a conspicuous place upon the date of injury, applicant attorneys will argue that the failure to post the updated notice is a defect, for which the penalty is the failure to control treatment from day one, following the industrial injury or notice of said injury. THIS BECOMES A CRITICAL ELEMENT TO PERFECT MPN CONTROL.
- You now need to be very careful and respond to every demand from applicant attorneys asking for a copy of: 1) Notice Poster pursuant to Labor Code Section 3550; 2) Pre and post injury notices pursuant to CCR sections 9767.12; 3) The applicant’s right to pre-designate a personal physician per 8 CCR sections 9780-9783. Remember, this decision was premised entirely upon the assumption that the employer has done everything right and that all notices were posted and provided timely. If not, then all bets are off.
- Expect more attention now to the Second and Third opinion process and IMR related to medical treatment and diagnosis, and we may begin seeing applicant attorneys going down this route because if they prevail at the level of the Independent Medical Review, then applicant can seek the disputed treatment or the contested diagnostic service either within or outside of the MPN.Up until now, I don’t think I have even seen the IMR process initiated since its inception.
- PREPARING THE MPN DEFENSE “PACKAGE” Expect some direct attacks on the MPN and specifically the pre and post injury notices. A good practice suggestion is the preparation of an MPN defense “package” which can be used to defend the MPN and which can be easily distributed to and used by your defense counsel. This would include copies of the employee notice poster, the pre and post injury notices and a copy of the link or the link for the access to the MPN. Also, copies of all employee notices and benefit letters, including the timely provision of benefits under Labor Code section 5402. And of course, having the employer or the MPN witness who can testify to this process named and made available for hearing.
- This decision should also impact how we deal with bills and liens and current reports from NON-MPN PHYSICIANS. My opinion is that this decision is effective NOW for all pending cases and therefore since it goes to statutory interpretation, YOU SHOULD CONISDER TAKING THE POSITION THAT FOR ALL OPEN CASES, ANY REPORTS FROM NON-MPN PHYSICANS ARE INADMISSLBLE FOR ANY PURPOSE. Again, this assumes you have a validly established and properly noticed MPN. THIS CREATES ENORMOUS LITIGATION AND SETTLEMENT OPPPORTUNITES.
 En Banc decisions are binding on all WCAB three member panels as well as effective statewide for all WCAB offices [Lab C 115] and are therefore citable authority unless the WCAB either rescinds or subsequently renders a contrary en banc decision or an Appeals Court either stays the decision or issues a contrary published decision. This decision specifically overrules any and all contrary prior WCAB Panel Decisions. [Case No. ADJ7048296 –decision filed 4/20/11].
Labor Code Section 4605 has been relied upon by many applicant attorneys in supporting the premise that an applicant can, at their own expense (self-procured with a lien) go out and get a consulting report form a physician. This has been interpreted to mean “self-procured medical legal” or the old system of “multi-specialty doctor referrals.” This is why we have seen so many doctors willing to treat out of network and render reports and provide care on a self-procured basis, because they always thought that even if their bills were at risk, the reports could somehow come in to evidence. Also, since most cases settle, these lien claimants would simply “wait” and take their chances at the lien conference on a potential negotiated lien settlement after compromise and release resolution of the case-in-chief. They still can. But those medical reports are no longer admissible for anything and even if admitted, cannot support an award either for treatment or compensation. This changes things. The same now applies to Labor Code Section 5703(c), which is the statute permitting the WCAB to receive reports from “attending or examining” physicians. This decision now bars the WCAB Judge from “receiving” a medical report from a non-MPN physician under the guise that the report is premised on 5703(c). It is not. This does not bar the WCAB from “developing the record” but that record development cannot be bootstrapped on a prior report coming from an out-of-network doctor. So, the out-of-network reports and physicians who now write them are “out of luck.”
 Refer to our attached bulletin regarding how to validly establish and properly notice an MPN.
 Section 4605 has been relied upon by some applicant attorneys supporting the premise that an applicant can, at their own expense (self-procured with a lien) and simply get a consulting report from a physician. This has been interpreted to mean “self-procured medical legal” or the old system of “multi-specialty doctor referrals.” This is why we have seen so many doctors willing to treat out of network and render reports and provide care on a self-procured basis, because they always thought that even if their bills were at risk, the reports could somehow come in to evidence. Also, since most cases settle, these lien claimants would simply “wait” and take their chances at the lien conference on a potential negotiated lien settlement after resolution of the case-in-chief. They still can. But that report cannot be admitted for anything and even if admitted, cannot support an award either for treatment or compensation. The same now applies to 5703(c), which is the statute permitting the WCAB to receive reports from “attending or examining” physicians. This decision bars the WCAB Judge from “receiving” a medical report from a non-MPN physician under the guise that the report is premised on 5703(c). It is not. This does not bar the WCAB from “developing the record” but that record development cannot be bootstrapped on a prior report coming from an out-of-network doctor.
 Pursuant to Labor Code 4616.4(b)