2011-EB-2 (2011). ELAYNE VALDEZ vs. WAREHOUSE DEMO SERVICES; ZURICH NORTH AMERICA Adjusted by ESIS.

• Court: California

California Workers Compensation Decisions 2011. En banc decisions 2011-EB-2 (2011). ELAYNE VALDEZ vs. WAREHOUSE DEMO SERVICES; ZURICH NORTH AMERICA Adjusted by ESIS WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIAELAYNE VALDEZ, Applicant, vs. WAREHOUSE DEMO SERVICES; ZURICH NORTH AMERICA, Adjusted by ESIS, Defendant(s).Case No. ADJ7048296OPINION AND DECISION AFTER RECONSIDERATION (EN BANC)The Appeals Board granted defendant's petition for reconsideration of the Findings and Award issued by a workers' compensation administrative law judge (WCJ) on July 29, 2010, to allow time to study the record and applicable law. The WCJ relied on medical reports obtained by the applicant from outside the defendant's medical provider network (MPN) to award her temporary disability indemnity for the period of November 2, 2009 through February 10, 2010. Defendant contends, however, that non-MPN medical reports are inadmissible. In order to secure uniformity of decision in the future, the Chairman of the Appeals Board, upon a majority vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision(fn1) on the following issue: if an applicant has improperly obtained medical treatment outside the employer's MPN, are the reports of the non-MPN treating physicians admissible in evidence? We hold that where unauthorized treatment is obtained outside a validly established and properly noticed MPN, reports from the non-MPN doctors are inadmissible, and therefore may not be relied upon, and that defendant is not liable for the cost of the non-MPN reports. I. BACKGROUND Applicant Elayne Valdez filed a claim for industrial injury to her back, right hip, neck, right ankle, right foot, right lower extremity, lumbar spine and both knees, while employed as a demonstrator for Warehouse Demo Services on October 7, 2009. Defendant admitted the claim for applicant's back, right hip and neck, and she was sent for medical treatment to the employer's MPN, where she was seen by Dr. Nagamoto, who treated her from approximately October 9, 2009 to October 31, 2009. Applicant then began treating with Dr. Nario, a non-MPN physician, upon referral from her attorney. This matter proceeded to trial on July 22, 2010, on the issues of temporary disability "from October 7, 2009 and continuing," and attorney's fees. The Minutes of Hearing also indicate that "[d]efendant wishes to raise the issue of [MPN]," which the WCJ deferred as "not relat[ing] to temporary disability."(fn2) The WCJ also deferred the issue of self-procured medical treatment. Applicant testified that her attorney sent her to Dr. Nario because the treatment provided by Dr. Nagamoto was not helping her. She never spoke to the claims examiner or otherwise notified defendant about this complaint. Applicant also testified that she "is still on temporary disability," and that she received payments from the Employment Development Department (EDD) from April 7, 2010 through May 26, 2010. The WCJ found that applicant was temporarily disabled from November 2, 2009 through February 10, 2010, for which indemnity was awarded "less duplication of payment made by the [EDD], whose lien therefore is allowed." The WCJ relied on the non-MPN reports of Dr. Nario for this finding and award of benefits. While the WCJ deferred "the issue of MPN," he nevertheless rejected defendant's argument that "reports of non-MPN doctors are inadmissible." Defendant filed a timely petition for reconsideration from the WCJ's decision, contending that (1) applicant's non-MPN medical reports are inadmissible; (2) there is no evidence to support any reimbursement to EDD for benefits paid to the applicant; and (3) if applicant is awarded temporary disability indemnity, there is no substantial evidence that applicant was temporarily disabled through February 10, 2010. Applicant did not file an answer to defendant's petition. On October 25, 2010, the Appeals Board granted reconsideration for further study. II. DISCUSSION A. Where Unauthorized Treatment Is Obtained Outside a Validly Established and Properly Noticed MPN, Reports from the Non-MPN Doctors Are Inadmissible and Therefore May Not Be Relied Upon An employer or its insurer is obligated to provide all medical treatment "that is reasonably required to cure or relieve the injured worker from the effects of his or her injury." (Lab. Code, § 4600(a).)(fn3) Section 4600(a) further provides: "In the case of his or her neglect or refusal to reasonably do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment." Section 4600(c) provides: "Unless the employer or the employer's insurer has established a medical provider network as provided for in section 4616, after 30 days from the date the injury is reported, the employee may be treated by a physician of his or her own choice at a facility of his or her own choice within a reasonable geographic area." An MPN is established by an employer or insurer subject to the approval of the administrative director (AD). (Lab. Code, § 4616; Cal. Code Regs., tit. 8, § 9767.3.) Among other things, the regulations require that the employer or insurer's application for approval of an MPN include a statement of how the MPN will comply with the "employee notification process" and the "second and third opinion process." (Cal. Code Regs., tit. 8, §§ 9762.1 through 9762.3.) The statutory and regulatory scheme also imposes several other obligations upon both the insurer/employer and the injured worker. In Knight, supra, 71 Cal.Comp.Cases 1423, the Appeals Board held that a defendant's failure to provide the required notices to an employee of rights under the MPN which 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. As stated previously, we assume for purposes of this opinion that defendant had a validly established MPN, and that all proper notices required under the MPN were provided to applicant. Here, after initially treating with an MPN physician, Dr. Nagamoto, for less than one month, applicant sought treatment outside the MPN with Dr. Nario. This was despite the fact that within the MPN she would have had several opportunities to challenge any treatment, diagnosis, or lack thereof with which she disagreed and treat with someone other than Dr. Nagamoto. More specifically, after the initial medical evaluation arranged by the employer within the MPN pursuant to section 4616.3(a), "[t]he employer shall notify the employee of his or her right to be treated by a physician of his or her choice," including "the method by which the list of participating providers may be accessed by the employee." (Lab. Code § 4616.3(b); Cal. Code Regs., tit. 8, § 9767.6(d).) In addition, AD Rule 9767.6(e) (Cal. Code Regs., tit. 8, § 9767.6(e)) provides that "[a]t any point in time after the initial evaluation with a MPN physician, the covered employee may select a physician of his or her choice from within the MPN." Furthermore, pursuant to section 4616.3(c), where an injured worker "disputes either the diagnosis or treatment prescribed by the treating physician," he or she "may seek the opinion of another physician in the...