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