The workers’ compensation community has been pondering the reversal and remand by the 2nd District Court of Appeal of the WCAB en banc decision in the matter of Valdez v. WCAB and Warehouse Demo Services filed May 29, 2012. Various legal observers have offered their opinions as to whether the courts have missed the mark in light the extensive processes set forth in the medical provider network (MPN) statutes to resolve “controversies” arising out that article. In this case, the appellate court held that Labor Code §4616.6 restrictions on the admissibility of medical reports obtained outside of the MPN apply only to those reports obtained pursuant to the second, third and independent medical review process. Several key points were made by the court to bolster their decision. The court found that the “report” of the Independent Medical Reviewer referenced in Labor Code §4616.4 was the same “report” referenced in Labor Code §4616.6.

Observing the rigorous process that the legislature enacted to address and resolve an employee’s concerns about the diagnosis or treatment within the MPN, the court determined that the legislature intended to put an end to that particular controversy by excluding other reports. However, the court also observes that non?MPN reports are not barred for all purposes, finding that had the Legislature wanted to do so it would have so stated.

Other decisions surrounding MPN v. non?MPN medical treatment have to do with the issue of medical control and liability for the payment of the self?procured treatment. The courts have consistently allowed workers to treat outside of the MPN at the employer’s expense where notice was insufficient (see Bruce Knight v. UPS [2006] WCAB En Banc). In a subsequent decision, a WCAB panel held that a worker may not be ordered to treat exclusively within an MPN because of the rights afforded to workers to consult with an attending physician pursuant to Labor Code §4604 (see Lane v. Big Lots Stores, Inc., [2008]).

However, the Lane panel also found that such treatment sought outside of a properly established MPN where notice was also proper would be at the employee’s expense. Such reports, the Valdez court reasoned, are not excluded from consideration when determining an employee’s rights to compensation and as such, the court held that there was “no basis to infer a legislative intent to preclude their use in other proceedings”.

The court made no finding as to whether the employer provided appropriate MPN notices and remands that particular issue. Should the lower court find that the notice was proper, applicant will likely be held responsible for the treatment costs. It remains to be seen how many applicants will be willing or able to pay for their medical treatment on the chance that a more favorable report will be procured for the purpose of determining compensation.

<i>Peggy Sugarman is director of training and organizational development for Grancell, Lebovitz, Stander, Reubens and Thomas, a workers' compensation defense law firm. This column was reprinted with permission from the firm's quarterly newsletter.</i>