By Nanci Freeman

Black is black and white is white. But then there is our beloved wonderland of workers' comp and its unique palate of shades of grey.  In this world the phrase “at the time of injury” really has a whole life of its own. What appears to be a very straightforward term is anything but.

Regulation 9767.12 requires that for the medical provider network (MPN) “Notification shall also be sent to the covered employee at the time of injury. Specifically, what is the time of injury?”

Let’s look at a possible factual scenario. Upon notice of injury from someone who is not the injured worker, must an employer mail an MPN notice? A head coach reports to the school principal that a junior coach injured his knee at practice last night. Once home, the junior coach, no stranger to sports injuries, ices his knee, keeps it elevated, and administers home care. He reports for work the next day, but self-modifies his duties to his comfort. By the following Monday, it is obvious that the knee will need some formal medical care, and so the junior coach drives to the main office and requests a claim form.  Four days after completing and submitting a claim form to the employer, the injured employee receives the MPN notices. Under this scenario, has the employer complied with Regulation 9767.12?

Yes. And no. Certainly there has been compliance. However, was there compliance at the time of the injury? Strictly speaking, no. The employer received notice of an injury through a secondary source. Was the obligation to send the MPN notices triggered by the initial third-party report?  Is the employer’s obligation to send MPN notices based on knowledge that an injury has occurred from any possible source?

Next, were the notices sent “at the time of injury?”  Was the notice timely after being mailed once the applicant completed and returned the claim form? The lack of specific time frames in which the MPN notices must be in the hands of the applicant is becoming a point of departure from opposite sides of the bar.

Of note is the opinion in Knight v. United Parcel Service. The defendant in knight did not act with anything like “’all deliberate speed” in notifying the injured worker about its MPN. Instead, it appeared that miscommunication or worse, no communication, was the order of the day.

The court in Knight said: "We hold that an employer or insurer's failure to provide required notice to an employee of rights under the MPN that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee."

Certainly the strenuous efforts of the applicant’s counsel in Knight were admirable by any account.  Most reasonable minds would agree that in the Knight case, needed information regarding the availability of medical treatment within the MPN was delayed. However, the fact that there was a delay was not the entirety of the opinion.

It does not appear that the court narrowed its holding to conclude that an employer’s failure to provide required notice may not be delayed, but rather that the delay must constitute a neglect or refusal to provide reasonable medical treatment.

If an acknowledged delay cannot be reasonably argued to have constituted a neglect or refusal to provide reasonable medical treatment, can the applicant treat outside of the MPN? At what point in time is the time between the filing of a claim form and the provision of MPN information to the injured constitute a delay, assuming compliance with all other notice requirements? Is five days a delay? If five days is considered a delay, does the delay result in a neglect or refusal to provide reasonable medical treatment?

I am grappling with application of the decision in Knight, and its reasonable interpretation, and when to draw a line in the time calculation to avoid elevating form over substance. Our office received a case wherein the injured employee received an MPN notice a week after filing a claim form, the MPN notice having been mailed by the insurance carrier once it received the referred claim from the employer. Even though the applicant had already been seen twice by an extremely well-respected physician within the MPN, it was necessary to appear at an expedited hearing to defend a demand for defendant to authorize medical treatment with a physician outside of the MPN on the theory that the MPN notice must be given to the injured worker concurrent with the Claim form, and since it was only mailed within a week of the claim form, notice was late.
 
Perhaps we need an opinion to set forth the number of days and hours that an employer has to send notice of the MPN, or further clarify what is meant by “at the time of injury” or when a delay constitutes a refusal to provide reasonable medical treatment.  I certainly acknowledge that it is possible for a delay to constitute neglect or refusal to provide medical treatment. This was the situation of Knight. But given the peculiar intolerance in workers compensation to shades of gray, even a seemingly innocuous “at the time of injury” may need a judicial clarification.

Nanci Freeman is an attorney with Martin & Martin LLP, a multi-practice law firm in Los Angeles.