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03/20/08 Panels Interpreting 4903.5 in Favor of Lien Claimants, Attorney Says 05/01/08 Applicants Can Pick Their Own Physicians Under 4605, WCAB Rules 05/23/08 Search Warrant Implicates Dozens in Alleged L.A. Fraud Ring 05/27/08 Premier Lawyer Says DA's Wide Net Part of a Smear Tactic 05/30/08 Investigators Arrest Doctor, Serve 22 Warrants in Fraud Probe |
| Applicants Can Pick Their Own Physicians Under 4605, WCAB Rules: 05/01/08
Injured workers have the freedom to receive treatment from physicians outside their medical provider network as long as they are willing to pay for the treatment themselves, thanks to Labor Code 4605, according to a recent stare decisis decision from the Workers' Compensation Appeals Board's Reconsideration Unit. John A. Mendoza of Perona, Langer & Beck, said that he successfully argued that injured workers should be able to opt out of the medical provider network (MPN) if they are willing to pay for the treatment, pursuant to L.C. 4605. The unit recently made the ruling in Chavez v. Brinks, Inc., No. LBO 389599, 4/21/08. Before the reconsideration unit took on the case, the trial court didn't consider Labor Code 4605, Mendoza said. "When we filed the petition for reconsideration, Judge (Charles) Ringwalt -- the trial judge -- reversed himself and filed his report and recommendation," he said. "And in his report and recommendation, he acknowledged after reading our brief, that he could not force the applicant to go to an MPN and that the applicant was obviously permitted to treat outside the MPN pursuant to 4605." Mendoza said that in his two other similar cases, the judges have reversed themselves in their recommendations to the WCAB Reconsideration Unit. Labor Code 4605 reads, "Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires." The choice of opting out of a network allows an applicant to introduce medical evidence into a trial from a trusted primary treating physician, as opposed to a physician from a network that is more likely to favor the employer, Mendoza said. In the Chavez case, the applicant, Jessie Chavez, "fears for his bodily health and believes that the defendant's physicians do not have applicant's health as a priority," according to Mendoza's petition for reconsideration. "I think that there's just kind of a mental culture that's prevailed since before 1/1/2005, in anticipation of the reform legislation, and everyone walks around with this idea that is just in error. The idea that people are walking around with - claims adjustors, judges, and practitioners alike on both sides of the bar - are sort of steeped in this false understanding that somehow we are locked into the MPN, there's no alternative. No one has considered, that I know of, 4605." Mendoza noted conversations with a variety of workers' compensation professionals, and thinks that the issue has slipped by much of the community because nobody fully examined the issue. "There's actually a pretty strong line of law that supports 4605 decisionally as well -- it's not just a statutory loophole," he said. "There's a couple of decisions that actually bring into question the constitutionality of telling someone that they can't -- at their own expense -- treat with a doctor." For example, Mendoza referenced Credit Bureau of San Diego v. Johnson in his petition for reconsideration to the WCAB as stating, "it is the right of the injured employee to refuse the assistance of a physician so supplied (that is, a physician paid for and supplied by the employer) and to independently contract for a physician of his own choice and at his own expense." When asked about the potential downside of opting out of an MPN, Mendoza said that the applicant risks paying for the medical treatment out of pocket. He said that statistically, the odds of a negative result are relatively low. "I would say a good third of the cases involve strong arguments under Bruce Knight v. UPS, that they would be permitted outside the MPN in any case, because the employer has not crossed the t's and dotted the i's as required by Bruce Knight and (Labor Code) 4616," Mendoza said. Even in the rare case where the applicant must pay the medical treatment out-of-pocket, Mendoza said that he would prefer to have a higher disability rating that could result from choosing the physician rather than stay within the MPN. "I'd rather get 40% PD report and end up paying the lien against compensation -- that $7,000 medical bill -- than what we are seeing consistently from the MPNs. That's 0% to 7% permanent disability ... and they (the worker) get dismissed from treatment a lot earlier too. Statistically, it doesn't make any sense to stay within the MPN in those cases." Go to the following web address to view the decisions, briefs, and reports from the Chavez v. Brinks decision: Source: WorkCompCentral
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