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HOW AND WHY TO ESTABLISH THE VALIDITY OF A MEDICAL PROVIDER NETWORK AT TRIAL
By Nicole Christy
What good is a valid MPN if you cannot prove it? Not much. In large part, applicants and their attorneys attempt to argue invalid MPN whenever they feel like going outside of it to procure treatment. Likewise, where the applicant or their attorney has already procured a favorable medical report from a non-MPN physician, they will often argue invalid MPN in order to admit the non-MPN medical report into evidence to rebut the conclusions or recommendations of the Panel Qualified Medical Evaluator or those of an MPN provider.
Labor Code section 4605 authorizes the applicant’s right to consult with, or procure treatment from, a non-MPN provider at their own expense. Certainly—at least on the surface—the fact that the applicant has to self-fund the non-MPN treatment should be a disincentive to going outside the network.
However, as we have all experienced, many of the eager, out-of-network providers will agree to treatment of an applicant on a lien-only basis, thereby providing an inherent bias and financial incentive to increase the valuation of the applicant’s claim. Our saving grace as defendants then, is the fact that the Code has been amended to confirm that such non-MPN reports “shall not be the sole basis of an award of compensation.”
In Valdez v. WCAB the California Supreme Court affirmed this interpretation, finding that "Section 4605 has long permitted employees to consult privately retained doctors at their own expense, and the amendments enacted by Senate Bill 863 maintain that right." However, "none of the new provisions require MPNs to be exclusive providers of medical treatment." It added that although the statutory changes "may encourage employees to use MPN services ... they do not foreclose other avenues of treatment, or bar the Board from considering medical reports generated outside of an MPN when it reviews applications for disability benefits."
As such, the fact that the report is from a non-MPN provider does not render it inadmissible, but rather, limits the weight of such reporting in evidence. Regardless of the fact that the MPN is not the exclusive source of medical treatment, medical reporting from outside of the MPN must be reviewed by an in-network provider or Panel Qualified Medical Evaluator in order to have any probative value at all.
The validity of a defendant’s MPN is often both the origin and the rebuttal for many arguments, DORs, and hearings. This issue, although still very much alive and well today, was somewhat resolved by the passing of SB 863, which codified and expanded upon the ruling in Clifton v. Sears Holding Corp. which found that where an MPN is approved or deemed approved by the administrative director, there shall be a conclusive presumption of the validity of the Medical Provider Network.
The Clifton decision allows a defendant to satisfy its burden of proof of the validity of its MPN by declaring the existence of the approved MPN and requesting judicial notice of its inclusion on the list of approved MPNs on the website of the administrative director. Once these steps are undertaken at Trial of the case-in-chief, or Expedited Trial, the validity of the MPN is not rebuttable.
The Appeals Board has held that taking judicial notice of the validity of a defendant’s MPN is congruous to the mandate that WCJs expeditiously and efficiently dispose of disputes between the parties. Therefore, when the applicant or her counsel attempt to admit a non-MPN report as the basis for an Award of benefits at Expedited Hearing, or Trial on the case-in-chief, unless there is consideration and comment on those non-MPN reports by an MPN physician or PQME, they cannot properly be considered as the basis for any such Award.
This is somewhat of a sleeper issue on seemingly low value cases where the reporting from the MPN providers and/or the PQME find no entitlement to a benefit (i.e. temporary disability, future medical care, or permanent disability) but the applicant pulls a non-MPN report out of thin air which they claim as the basis for their purported entitlement to said benefit. Even where the validity of the MPN is “uncontested” by the parties going into Trial for the purposes of defendant’s objection to authorizing/paying for the applicant’s treatment outside of the network, defense counsel should take judicial notice of the validity of the MPN for the purposes of forcing the WCJ to disallow the non-MPN reporting as the sole basis of the Award sought by the applicant.
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