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California -- Applicants Must Pay for Going Outside the MPN:
Attention: Top [10/14/08]

California employers are not liable for the cost of medical treatment for applicants who go outside a properly noticed medical provider network and self-procure treatment for on-the-job injuries, the Workers' Compensation Appeals Board ruled.

The WCAB last week issued a panel decision clarifying the liability of carriers and employers in cases where claimants "go outside the MPN" pursuant to Labor Code Section 4605. Some attorneys say such self-procurement of medical treatment is a growing trend in the Los Angeles area.

As previously reported by WorkCompCentral, some applicants have advised their clients to self-procure as a strategy for obtaining greater permanent disability awards.

Defense attorney Amy Marron said that in cases where the claimant has elected to voluntarily leave the MPN, medical providers are still billing defendant employers and carriers, despite WCAB rulings stating that the claimant must pay out of pocket for care outside of networks. However, prior WCAB decisions have not clarified whether a defendant could be liable in cases where the claimant prevailed.

The panel decision in /Lane v. Big Lots Stores, et al./, No. ADJ2708349, 10/13/08 does not provide citable authority. But Marron said the ruling at least gives insurers and employers ammunition to deny liens for self-procured care.

The WCAB held in the Lane case:

"Because defendant did not neglect or refuse to provide reasonable medical treatment through its MPN, applicant is liable for any medical treatment he chooses to self-procure pursuant to section 4605 and he is not free to later assert that defendant is liable for the costs of any of that treatment. Nor may the treating physician seek payment from defendant for medical treatment that applicant chose to self-procure from the physician."

Marron said that in the initial trial proceeding, the workers' compensation judge ruled that the injuries were compensable, and according to the decision, ordered the claimant to treat via the MPN. The claimant, Melvin Lane, filed a petition for reconsideration, arguing that he could not be ordered to treat within the defendant's MPN.

"When I did my response to recon, I said this is just going to keep on coming up, coming up, and coming up," Marron said. "I can continue to try this MPN issue, but even if I win, I end up having to go to trial twice to go after the lien claimants to say, 'I already won on this, why do I have to go back and fight your bills?'

"A decision needs to be made so that defendants don't have to keep going back and fighting. ... It can take 20 hours just to prep for the lien trials and conferences."

In the past, many employers opted to dispute liens for out-of-network care individually after the claimant's trial, rather than to contend early on that they aren't liable for self-procured medical care, Marron said. She noted that lien disputes can result in large defense costs even when the defendants prevail. Marron said that it took her approximately seven hours of preparation to show that Big Lots, the employer in the Lane case, provided adequate notice of the MPN.

Marron, who is based in San Diego but litigates throughout Southern California, noted an increasing number of claimants seeking treatment outside the MPNs at their own expense in hopes of a higher permanent disability award, especially at the Los Angeles and Riverside WCABs. The number of firms using this tactic has dramatically increased in these areas during the past year, she said.

However, in San Diego, attorneys are unable to use this tactic because doctors refuse to get involved, unless they know that the employer or carrier will pay their bills, she said.

San Diego attorney Linda Atcherley, a former president of the California Applicants' Attorneys Association, agreed that the tactic of going outside of the network is primarily being used in the Los Angeles area.
Atcherley said she disagrees with the use of procuring all medical treatment outside of the network for the sole purpose of getting a higher permanent disability rating. She said that in San Diego, many of the best doctors that she would prefer to use are within MPNs anyway.

"I think the appropriate use of that Labor Code Section (4605) is to get a second opinion on your own dime," Atcherley said. "Sometimes defendants won't agree to an agreed medical evaluator, so you get a really lousy panel qualified medical evaluator decision. I think you have cases where because of the complexity of the injury, and the nature of the injury, and the wage loss - I think there are times where it is very appropriate to exercise that Labor Code provision, and go out and get a proper report of substantial evidence that can be used for your client."

She emphasized the importance of adequately informing the client about their option to self-procure. The other instance where Atcherley recommends going outside the network, is when the MPN does not contain a specialist necessary to treat an injury.

Saul Allweiss, a Tarzana-based defense attorney, said that he has not observed an increase in opting out of MPNs for higher permanent disability ratings. He pointed out the existence of a significant related issue, which has not been addressed by a citable legal authority.

"Once you're outside of the network, does that mean that you are outside forever?" Allweiss said. "Or does it mean - can the employer bring the injured worker back into the network using what's known as transfer-of-care policies?"

The law firm that represented Lane in the case, Perona, Langer, Beck & Serbin Lawyers in Long Beach, could not be reached for comment on Monday.

To read the panel decision, go to the following address:

By John P. Kamin, Legal Editor


P.O. Box 1264
Gridley, CA 95948

Mail to: jwpi@aol.com

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