Friday, April 13, 2012

Valdez Wins if Docs Want to Work for Free - Didn't Think So

One of my very first lessons as a workers' compensation neophyte was, "he who controls the medical controls the case."

That is the premise behind the fight in Valdez v. WCAB, No. B237147 (pending in the California 2nd District Court of Appeal) where the Workers' Compensation Appeals Board (WCAB) ruled last April that Labor Code Section 4616 bars the admission of medical reports from doctors who are not a part of an employer's properly noticed and valid Medical Provider Network (MPN). That code section sets forth a multi-level process for an injured worker to change physicians within an MPN and obtain the opinions of additional doctors to dispute a treatment or diagnosis.

John A. Mendoza, Valdez' attorney in the case argues that this ruling conflicts with another Labor Code section, 4605, which provides that "(n)othing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires."

Mendoza told WorkCompCentral in an interview yesterday that, "every section in 4600 is talking about an employer's obligation. It says an employer 'shall make a medical appointment,' but it never says an employee shall attend."

The argument being, in summary, that if the injured worker wants to "pay for" his or her own medical treatment and evaluation that any evidence from such treatment or evaluation is admissible to prove or disprove an issue.

Honestly I don't have a problem with that - as long as the injured worker ACTUALLY pays for the treatment, exam and/or report - and that NEVER happens!

What actually happens is that the physician providing such services does so on a lien basis and the employer/carrier ends up paying for it anyhow, so section 4605 becomes nearly irrelevant.

One of the basic tenets of workers' compensation (which, by the way, I do think is a flaw in the underlying philosophy of the system - but that's the topic of another column) is that all medical services are without expense to the injured worker. That is an entitlement well ingrained in the minds of workers, their counsel and the physicians doing the work.

I think that the position taken by Valdez is extreme, and is not even fully supported by the California Applicant Attorneys Assoc. (CAAA).

CAAA's amicus brief in the case argues that he WCAB decision "was overly broad" in excluding physician reports from non-MPN providers in every administrative proceeding, and that the injured worker should be able to use the treating physician's reports in disputed body parts cases.

A related issue in the case is how Labor Code section 4616.6 interfaces with the whole process.

4616.6 states simply: "No additional examinations shall be ordered by the appeals board and no other reports shall be admissible to resolve any controversy arising out of this article."

"This article" is Article 2.3 governing MPNs beginning with Labor Code Section 4616.

The WCAB said that "Section 4616.6 is not limited to cases where there has been an (independent medical review) under Section 4616.4, because other 'controversies' may arise under the MPN article of the Labor Code before the injured employee gets to the stage of requesting an IMR."

4616.4 is all about the Independent Medical Review process.

CAAA argues that 4616.6 "by its own terms is limited to disputes arising within the … MPN … and specifically, the independent medical review."

Valdez argues that Section 4616.6 is limited to cases where there has been an independent medical review under Section 4616.4, so it was inapplicable to his case.

The California Workers' Compensation Institute (CWCI), an insurance carrier supported research and advocacy organization, argues that the intent of the legislature in 2004 was to secure medical control to the employer. And that may be true, but the argument doesn't really address the technical issue as to whether an employee can go outside the employer controlled medical process at his or her own expense.

Valdez' argument that there is no requirement that an injured worker attend an appointment within an MPN may be true (I'm not completely buying that - there is a process to compel attendance or forfeit rights in the litigation process, but that its very rarely enforced), but the issue then really becomes who is paying for that privilege at the end of the day?

Certainly if Valdez' argument wins, that 4605 grants the injured worker the right to see whoever he or she wants for medical services at his/her own expense, then the court must also make clear that there is absolutely no liability for such medical expense by the employer/carrier. Does the court see that as an issue?

Is there anyone in the medical-legal business willing to paraphrase Larry Miller, president of Southern California bed retailing chain, Sit N' Sleep, in his commercials, "We'll beat any competitor's advertised rating, or your medical report is FREEEEE!"?

{silence except for crickets chirping}

I thought so.


  1. Let's see... how many arguments are raised by defendants in nearly every lien hearing... uh, the treatment was neither reasonable or necessary... um, the amount billed exceeds the statutory fee schedule....ah, the claim is denied AOE/COE. So, you think these defenses have prevented the payment of medical liens since the 1975 reform? Come on, don't be naive. There are dozens and dozens of defenses raised to the assertion of most lien claims... but the lien claimant nearly always walks away with payment. Oh... forgot one, the treatment was procured outside the MPN. Just one more (of dozens) of defense arguments to add to the list. And, by the way, the lien claimant's response to the MPN argument: Burden's on you buddy (see Bruce Knight v. UPS). Oh DePaolo, and you were so excited.

    1. Damn, deflated again - thanks for putting me back in my shoes J!