2011-EB-6 (2010). ELAYNE VALDEZ vs. WAREHOUSE DEMO SERVICES; ZURICH NORTH AMERICA Adjusted By ESIS Defendants.

CourtCalifornia
California Workers Compensation Decisions 2011. En banc decisions 2011-EB-6 (2010). ELAYNE VALDEZ vs. WAREHOUSE DEMO SERVICES; ZURICH NORTH AMERICA Adjusted By ESIS Defendants WORKERS' COMPENSATION APPEALS BOARD STATE OF CALIFORNIAELAYNE VALDEZ, Applicant, vs.WAREHOUSE DEMO SERVICES; ZURICH NORTH AMERICA, Adjusted By ESIS, Defendants.Case No. ADJ7048296OPINION AND DECISION AFTER RECONSIDERATION (EN BANC)On July 14, 2011, the Appeals Board granted reconsideration of the en banc decision issued in this matter on April 20, 2011, to further study the factual and legal issues in this case. The following is our Decision After Reconsideration. For the reasons discussed below, we will affirm the April 20, 2011 en banc decision,(fn1) wherein we held that, where unauthorized treatment is obtained for an industrial injury outside a validly established and properly noticed medical provider network (MPN), the resulting non-MPN treatment reports are inadmissible and may not be relied upon to award benefits. Applicant seeks reconsideration of our prior decision contending that (1) by the plain meaning of Labor Code section 4616.6,(fn2) "inadmissibility of non-MPN reports is limited to the independent medical review appeal;" (2) "ruling that 4616.6 is a broad rule of inadmissibility to all proceedings causes mischief, exorbitant costs, and an absurd result;" (3) the Appeals Board's decision "violates longstanding law;" (4) "defendant waived admissibility of the medical reports by failing to raise it at trial;" (5) the Appeals Board's decision "violates due process;" and (6) the Appeals Board's decision "lacks substantial evidence." Defendant filed a timely answer to applicant's petition, disputing each of applicant's contentions.(fn3) In addition, as noted in our July 14, 2011 Opinion and Order Granting Reconsideration, Armando Saldivar (Saldivar), an applicant in another case (ADJ7516842), also filed a petition for reconsideration, or in the alternative, a petition for removal, from the Appeals Board's en banc decision of April 20, 2011. For the reasons discussed below, we will dismiss Saldivar's petition. I. BACKGROUND To briefly restate the facts, applicant was initially treated for the admitted October 7, 2009 industrial injury to her back, right hip and neck through the employer's MPN by Dr. Nagamoto, from approximately October 9, 2009 to October 31, 2009. For no apparent reason and without regard to following MPN procedures, applicant began treating with Dr. Nario, a non-MPN physician, upon referral from her attorney. At the hearing held on July 22, 2010, on the issues of temporary disability and attorney's fees, the workers' compensation administrative law judge (WCJ) deferred any issues involving the MPN, which had been raised by the defendant, as "not relat[ing] to temporary disability." Relying on the non-MPN reports of Dr. Nario, the WCJ found that applicant was temporarily disabled from November 2, 2009 through February 10, 2010. In his Opinion on Decision, the WCJ 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, among other things, that applicant's non-MPN medical reports were inadmissible. Applicant did not file an answer to defendant's petition. On April 20, 2011, the Appeals Board held en banc 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. However, as the WCJ had deferred any issues concerning the MPN, we remanded the matter to the trial level for determination of whether defendant's MPN was validly established and that all proper notices regarding the MPN were provided to the applicant. (See Lab. Code, § 4616 et seq.; Cal. Code Regs., tit. 8, § 9767.1 et seq.; Knight v. United Parcel Service (2006) 71 Cal.Comp.Cases 1423 (Appeals Board en banc).) On May 16, 2011, applicant filed a timely petition for reconsideration. On July 14, 2011, we granted reconsideration to further study the factual and legal issues in this case. II. DISCUSSION A. Applicant's Petition We first address applicant's contentions concerning section 4616.6 that the "plain meaning" of that section limits inadmissibility of non-MPN reports "to the independent medical review appeal" and that interpreting section 4616.6 as "a broad rule of inadmissibility to all proceedings causes mischief, exorbitant costs, and an absurd result." Contrary to applicant's contentions, we acknowledged that section 4616.6, by its terms, specifically precludes the admissibility of non-MPN medical reports only with respect to disputed treatment and diagnosis issues, i.e., "any controversy arising out of this article." We, however, did not predominantly rely on that section to find that medical reports obtained outside a validly established and properly noticed MPN on other issues are inadmissible.(fn4) More specifically, we found persuasive the right to change treating physicians within the MPN (Lab. Code, § 4616.3(b)), the multi-level appeal process to dispute the opinions of MPN physicians regarding diagnosis and treatment (Lab. Code, §§ 4616.3(c), 4616.4(b)-(i)), the provisions requiring the primary treating physician [PTP] to "render opinions on all medical issues necessary to determine the employee's eligibility for compensation" (Lab. Code, § 4061.5; Cal. Code Regs., tit. 8, § 9785(d)), and the provisions for resolving disputes regarding temporary and permanent disability under sections 4061 and 4062. With respect to the opportunities to change treating physicians and to dispute opinions concerning diagnosis and treatment, we stated:
"... [A]fter 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 [MPN],' and of 'a third physician in the [MPN],' if the diagnosis or treatment of the second physician is disputed.
"In addition, section 4616.4(b) provides that if the treatment or diagnostic service remains disputed after the third physician's opinion, 'the injured employee may request independent medical review.' Pursuant to section 4616.4(i), if 'the independent medical reviewer finds that the disputed treatment or diagnostic service is consistent with section 5307.27 or the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, the injured employee may seek the disputed treatment or diagnostic service from a physician of his or her choice from within or outside the [MPN], and '[t]he employer shall be liable for the cost of5 any approved medical treatment in accordance with section 5307.1 or 5307.11.' "(fn5)
We then indicated that the definition of the PTP includes the physician selected "in accordance with the physician selection procedures contained in the [MPN] network pursuant to [section] 4616" (Cal. Code Regs., tit. 8, § 9785(a)(1)), that "[a]n employee shall have no more than one [PTP] at a time" (Cal. Code Regs., tit. 8, § 9785(b)(1)), and that it is the PTP who "shall render opinions on all medical issues necessary to determine the employee's eligibility for compensation." (Lab. Code, § 4061.5; Cal. Code Regs., tit. 8, § 9785(d).) In addition, if an employee "disputes a medical determination made by the [PTP]... the dispute shall be resolved under the applicable procedures set forth in [sections] 4061 and 4062," and "[n]o other [PTP] shall be designated by the employee unless and until the dispute is resolved." (Cal. Code Regs., tit. 8, § 9785(b)(3).) Thus, we concluded that under these provisions, where an applicant has left a validly established and properly noticed MPN and impermissibly sought treatment outside the MPN, the non-MPN physician cannot be the PTP; the MPN treater remains the PTP. However, while medical treatment and diagnosis issues must be resolved within the MPN, disputes concerning temporary or permanent disability are to be resolved outside the MPN using the medical-legal procedures of sections 4061 and 4062. Therefore, section 4616.6 does not prevent an applicant from disputing the...

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