OK, dear readers, your humble blogger has a crazy question with which to ruin your weekend: what does the wording of “at his or her own expense” mean?  As my beloved readers will recall, the Supreme Court interpreted Labor Code Section 4605 to mean that an injured worker can treat outside of the medical provider network “at his or her own expense.” (Remember the Valdez decision?)  But what does that mean, exactly?

Let’s take some hypotheticals.

Applicant sustains an injury to the back working at a duck farm lifting some heavy bags of duck feathers. His employer’s insurer wants to send him to an MPN physician, but the quacking sounds remind applicant of work, so he decides to pay for his own treatment.

If he goes across the street to the medical offices of Whey, Cheatum, and Howe, D.C.s and offers to pay cash for treatment, are we within the scope of 4605?  Probably – that seems about as clear-cut as you can go.

Now, let’s change it up a bit – what if Donald (that’s the injured worker’s name, by the way) wasn’t always working on that duck farm? In fact, Donald has a prior injury to the back from when he was an English teacher at Duck U., and that claim was resolved with an award, including future medical treatment. If he decides to treat the same body part, but claims it under Duck U.’s medical award, is it still “at his or her own expense”?

On the one hand, if it is at his own expense, does that mean that the second employer is somehow shielded from a contribution claim from the first employer/insurer? If it isn’t at his own expense, does that mean he is precluded from treating under his old award because there is an accepted injury?

Now, those of you still reading this most irritating of blog posts, out of some intellectual masochism, are probably thinking “well, the awards overlap, so it’s not at his own expense.” Well, then let's add another fact.

Labor Code Section 4604.5 provides a cap on all post 1/1/2004 injuries – no more than 24 chiropractic visits. So, Donald only saw a chiropractor 12 times for his back as a result of his old injury – what if he decides to use the other 12 for this new injury? 

He’s using up a finite resource, as Duck Farm’s UR said he doesn’t need chiropractic treatment at this point, but Duck U.’s UR vendor, without addressing the issue of causation, has found chiropractic treatment to be appropriate now.

Since he’s down to 12 visits, is it “at his … own expense,” as contemplated by Valdez and Labor Code Section 4605?

What do you think, dear readers? What position would you take? Because, if you know that Donald isn’t going to treat within your MPN, you might have to risk exposure for a contribution petition if it is not at his expense, or you might have to let the non-MPN reports come in if you take the position that it is at his own expense.

Enjoy your weekend, dear readers, but when Monday comes I expect some answers!

Gary Grinberg is a workers' compensation defense attorney in San Mateo, California. This column was reprinted with his permission from his WCDefenseCA blog.