By Jake Jacobsmeyer

The Workers' Compensation Appeals Board issued an en banc decision that arrives at the very understandable conclusion that where a defendant fails to notify the applicant of the existence of a medical provider network and to give the required notices under Labor Code Section 4616.3 and the administrative directors regulations, the defendant is not able to rely upon the MPN to direct medical care and is responsible for the self-procured medical care obtained by the applicant.

The factual history of the case really dictated the result in this decision.

The facts, taken from a historical summary provided by the applicant attorney's office and not disputed by the defendant, read like a horror story of administrative misadventure. One has to read the case to get the complete flavor of the lack of compliance with the requirements of the MPN that is detailed in the summary and the multiple efforts by the applicant attorney's staff to try and get their client into a physician, any physician whether inside or outside the network. There is also no evidence that the carrier ever provided a single notice to the employee about their rights in the MPN including the right to select a physician, obtain second or third opinions etc. The only notice in the record was a letter that the applicant was required to utilize the defendant's MPN and asking questions about the status of the injured worker's current PTP but no additional information was conveyed about accessing the MPN or the employee's rights within the MPN.

The complete lack of information provided by the employee even with the efforts of their counsel, the defendant made the decision in this case rather simple. The WCAB holding is equally simple:

"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."

The WCAB reviewed the historical importance of an employer/carrier's affirmative obligation to provide notice of the right to obtain medical care and concluded:

"Information about how to access medical treatment, how to choose and change physicians, how to obtain independent medical review, and, thus, how to generally and specifically "use" the MPN, are all crucial to the provision of reasonable medical treatment. In this case, defendant failed to tender reasonable medical care through the MPN and failed to provide required notice to applicant of his rights under the MPN."

The board then reviewed the failures of this employer:

"Applicant testified that he never received written notice about the MPN from defendant and there is no such written notice in evidence. This is contrary to the requirement that an employee be notified "in writing about the use" of the MPN prior to its implementation and at the time of injury. (Cal. Code Regs., tit. 8, Section 9767.12(a).) Moreover, applicant was never notified if treatment had or had not been initiated in the MPN. He was never notified that an MPN physician had or had not been designated as primary treating physician. He was never provided notice of his right to be treated by an MPN physician of his choice after the first visit as required by section 4616.3(b). He was never notified of his right under section 4613(c) to dispute an MPN diagnosis and to obtain second and third opinions. The only evidence of notice regarding the "method" for accessing the list of MPN physicians as required by section 4613(b) are the uncertain and confusing references in the June 14, 2005, letter. Despite the June 6, 2005, letter from applicant's attorney notifying Liberty that applicant was without medical care, Liberty provided no guidance on how he was supposed to obtain medical treatment."

If there was ever a question about an employer/carrier's obligation to provide notice of an employee's rights to take advantage of the implementation of an MPN, it should be dispelled with this decision.

However there are several unanswered questions in the decision. The notice failures of the defendant in this case are so overwhelming as to compel the result, but what happens when the employer provides sufficient notice that the employee actually has access to the MPN? The decision suggests that the employer's obligation to provide care outside the MPN is dependent on a finding that there was a failure to provide care. A different result might very well apply where there is notice but not necessarily complete notice or where there is not an actual delay in the provision of medical care.

The WCAB also made it clear that the burden is on the employer-carrier to prove that notice has been given, not on the employee to show there was not any notice. This is significant in cases where the injured worker's files for an expedited hearing claiming the right to treat outside the MPN due to lack of notice. It is necessary for defense counsel to be prepared to provide copies of the notices sent by the employer/carrier/MPN with adequate documentation to make the necessary showing at the WCAB. This may require that an employee of the employer or carrier appear and testify as to the kind of notices that have been provided as well as copies of the actual notices sent to the injured worker.

Many applicant attorneys are not challenging the efforts of employers to put their clients into the MPNs as there are sometimes procedural advantages and most networks are sufficiently large that a reasonable selection of treating physicians can be found in the network. However for those who are challenging the networks, sometimes to be able to direct the injured worker to their selected physicians for reporting purposes, defendants will have to be prepared to put on the necessary evidence to obtain the benefit of their contractual rights to direct treatment into MPNs.

Attorney Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain & Claffey and can be reached at jakejacobsmeyer@shawlaw.org.

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