GEORGE THE BARTENDER’S DISPATCHES FROM ONLINE HAPPY HOUR – MPN ACCESS STANDARDS – HOW MANY SPECIALISTS? IN HOW MANY SPECIALTIES?
My dog Freeway and I were making our usual rounds in the neighborhood when we happened to chance upon noted applicant attorney, Steve Brewberry, doing some yard work in front of his home. We exchanged pleasantries, and as is our wont when we typically see each other out and about in the neighborhood, we started to talk shop. Freeway settled in at my feet for a nap, as he knew we can sometimes go on for bit about when discoursing on the wonderful world of workers’ compensation.
Steve had what he though was a winning argument in a recent case. Steve’s client strained her neck at work while employed for a large public entity. The industrial clinic found injury but discharged her after two physical therapy visits and one follow up evaluation. However, her neck still hurt and she was having trouble doing her job. She wanted to stop working.
Steve wanted her to see a chiropractor, yet, he added that the employer’s medical provider network (MPN) allows no chiropractors to be chosen as primary treating physicians. This prompted him to write a strongly worded letter to the defendant, demanding chiropractic treatment and complaining of a denial of treatment.
Not one to wait, Steve had his client seen the next day by a chiropractor who treats on a lien basis. He also filed for an Expedited Hearing for medical treatment, as he claimed Title 8, California Code of Regulations, Chapter 4.5, Subchapter 1, Administrative Director – Administrative Rules, Article 3.5, §9767.5, Access Standards (abbreviated CCR §9767.5) requires the MPN have three chiropractors within 15 miles or 30 minutes of his client. The prohibition of chiropractors in the employer’s MPN violated those access standards.
For those readers who may have forgotten, CCR §9767.5 states as follows:
(a) A MPN must have at least three available physicians of each specialty to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and within the access standards set forth in (1) and (2).
(1) An MPN must have at least three available primary treating physicians and a hospital for emergency health care services, or if separate from such hospital, a provider of all emergency health care services, within 30 minutes or 15 miles of each covered employee’s residence or workplace.
(2) An MPN must have providers of occupational health services and specialists who can treat common injuries experienced by the covered injured employees within 60 minutes or 30 miles of a covered employee’s residence or workplace.
I told Steve that he had an interesting reading of CCR §9767.5, as that was not how I see it, and regrettably for Steve, I added that it is not how the Workers’ Compensation Appeals Board sees it either.
The WCAB was presented with a similar case recently in Kazrani v. Los Angeles Unified School District, 2021 Cal. Wrk. Comp. P.D. LEXIS 126 published on May 13, 2021.1 I explained to Steve that in Kazrani a Workers’ Compensation Judge (WCJ) found that an MPN did not need to have three of every single type of physician that might be appropriate for every single type of injury, noting that such a requirement would invalidate most MPNs.
The WCJ added that such a requirement would invite both abuse and litigation, as parties looking to obtain medical treatment might be encouraged to pinpoint specialties that didn’t exist within a given MPN and then litigate their appropriateness. The WCJ found that so long as an MPN has three physicians of various specialties appropriate to the type of profession or field in which the employee is engaged, the access standards set forth in CCR §9767.5 are met.
The applicant took umbrage with this finding and filed a petition for reconsideration. The WCAB held that the employer’s MPN did not violate access standards, adopting the findings of the WCJ and affirming its decision.
I mentioned to Steve that similar to his argument, in Kazrani the applicant claimed:
. . . that because the defendant’s MPN does not have at least three chiropractors available to act as primary treating physicians, the access standards of Title 8, Cal. Code Regs. § 9767.5(a) have not been met, and applicant is free to self-procure her medical treatment outside the MPN at the employer’s expense.
Of note in their report and recommendation the WCJ pointed to the panel decision in Elshami v. C&A Restaurants, 2019 Cal. Wrk. Comp. P.D. LEXIS 390, which quoted Puente v. Napa Valley Unified School District (ADJ8911659) (2017 Cal. Wrk. Comp. P.D. LEXIS 100) as reasoning for their decision, which states:2
. . . as long as the MPN has at least three primary treating physicians of a specialty appropriate to treat applicant’s injury within the 15 mile/30 minute access standard who are available to undertake the role of primary treating physician, the MPN will have satisfied it obligation to provide medical treatment.
I further elucidated for Steve that the WCJ examined the statute underlying CCR §9767.5 is California Labor Code §4616(a)(1):
(1) An insurer, employer, or entity that provides physician network services may establish or modify a medical provider network for the provision of medical treatment to injured employees. The network shall include physicians primarily engaged in the treatment of occupational injuries. The administrative director shall encourage the integration of occupational and nonoccupational providers. The number of physicians in the medical provider network shall be sufficient to enable treatment for injuries or conditions to be provided in a timely manner. The provider network shall include an adequate number and type of physicians, as described in Section 3209.3, or other providers, as described in Section 3209.5, to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed.
The WCJ made sure to draw our attention here to the word adequate, emphasizing it when they quoted from labor code §4616(a)(1) in their report and recommendation. As Merriam-Webster defines it adequate means “sufficient for a specific need or requirement,” or “lawfully and reasonably sufficient.” I clarified for Steve the importance of this word when attempting to argue against a violation of access standards, as it seemed to me what the WCAB and WCJ were getting at was that labor code §4616(a)(1) and CCR §9767.5 stand together as legitimate and reasonable when it came to access standards.
The WCJ concluded with regard to labor code §4616(a)(1) and their report and recommendation stating:
To the extent that the statute represents a legislative compromise between access to prompt delivery of appropriate medical treatment while maintaining the cost containment, quality and consistency goals underpinning the creation of medical provider networks generally, the applicant’s reading of the access requirements would defeat the latter in service of the former.
My exposition concluded, Steve at this point in our exchange was beside himself with sadness, as he felt that he had a sure fire winning argument. I saw this as an adequate moment to return home, so I expressed my sympathies to Steve and roused Freeway from his nap and we made our way home.
All characters from my walk around the neighborhood are fictional and the storyline is simply a product of my animated imagination.
It is important to remember that as the WCJ concluded in their report and recommendation above, workers’ compensation in California is a benefit system in which access to appropriate medical treatment for a work related injury is balanced with cost and quality of care. It might not be a system where every single injury can be addressed with unlimited resources but is adequate until the state legislature or voters say it’s not.
Kazrani lacks the designation “significant panel decision,” however, the WCAB may consider panel decisions to the extent that it finds their reasoning persuasive, as laid out in its en banc decision
Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, 242, fn. 7.
Joe Truce, formerly a managing shareholder at our firm and creator of George the Bartender, would draw our attention to California Evidence Code §452(d), which provides that judicial notice may be taken of “Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.”
We continue to venture out into the world when we can, taking in the pleasures of the neighborhood on evening strolls with our favorite canine friends. Cheers friends, and keep washing your hands.
1 A copy of Kazrani may be obtained via email request.
2 A copy of Elshami may be obtained via email request.