GEORGE THE BARTENDER RETURNS TO THE LOBBY BAR FOR THE HOLIDAYS JUST IN TIME TO DISCUSS MPN ACCESS STANDARDS!
FROM THE LOBBY BAR OF THE HYATT:
Following a long day of shopping in Downtown Los Angeles, I made my way down to Long Beach to pay a visit to the comforting confines of the Lobby Bar.
Upon entering the prestigious establishment, I noticed it was decked out in greens, reds and lights as far as the eyes could see! I spotted at the other end of the bar one Holly Hustler, noted applicant’s attorney, enjoying a Christmas-red concoction. As I knew her to be fond of Whiteclaw I made my way over to her to see what prompted the change in her libations tonight.
Holly let me know that she was drinking a Cosmopolitan in honor of the reprisal of our favorite show about four young women and their quest for love in New York City.1 She was also particularly happy, and shall I say giddy, because she anticipated a victory in her recently submitted trial. She was sure the workers’ compensation judge (WCJ) would grant her request for the applicant to treat outside the medical provider network (MPN).
Holly anticipated a landslide victory, and ordered drinks for all sitting at the bar, contending that her applicant could treat outside of the MPN because it did not meet the required access standards and the medical access assistant (MAA) failed to set a timely appointment.
I listened as Holly explained what happened at trial. She had contacted the MAA and requested that they provide three MPN pain management physicians willing to serve as Primary Treating Physician (PTP), accept a new patient and provide an appointment within 20 days.
Four days later the MAA replied via email listing three MPN physicians within 30 miles of applicant’s residence. At this point Holly was then supposed to contact the MAA and advise them of her client’s selection of one of the three MPN physicians listed. However, Holly responded to MAA by advising them that the list didn’t include three pain management doctors who could be a PTP and provide an appointment.
The defense counsel then followed up with Holly reminding her that the physicians’ names were provided and that her client should notify them of their selection of a pain management specialist. Holly provided the defense with proof that one of the three listed pain management specialists refused to act as the PTP, so her client was entitled to seek treatment outside of the MPN.
The matter went to trial on the issues of:
1) Whether or not the applicant could treat outside of the MPN for defendant’s failure to meet the required access standards; and
2) Whether or not the applicant could treat outside of the MPN because defendant’s MAA failed to set a timely appointment.
Holly had filed the DOR for Expedited Hearing and had the burden of proof at trial. She told me that she believed her second issue was supported by Title 8, California Code of Regulations, Chapter 4.5, Subchapter 1, Administrative Director – Administrative Rules, Article 3.5, §9767.5(g), Access Standards (abbreviated CCR §9767.5(g), which provides in relevant part:
The MPN applicant shall ensure that an initial appointment with a specialist in an appropriate referred specialty is available within 20 business days of a covered employee’s reasonable requests for an appointment through an MPN medical access assistant. If an MPN medical access assistant is unable to schedule a timely medical appointment with an appropriate specialist within ten business days of an employee’s request, the employer shall permit the employee to obtain necessary treatment with an appropriate specialist outside of the MPN.
I reminded Holly that per California Labor Code §4616(a)(1) an MPN is required to have2 :
… an adequate number and type of physicians… 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.
I felt it pertinent to also remind her that Labor Code §4616.3(d)(1) provides:
Selection by the injured employee of a treating physician and any subsequent physicians shall be based on the physician’ specialty or recognized expertise in treating the particular injury or condition in question. (emphasis added)
Therefore, in my opinion I felt that an MPN was viable if it had an adequate selection of physicians in specialties or with expertise appropriate to the applicant’s injury or condition in question to undertake the role of primary treating physician within a specified geographic area. I told Holly that the Workers’ Compensation Appeals Board (WCAB) has ruled that an injured worker’s right to select a specialist as a primary treating physician is not specifically addressed in the statues governing MPNs. I added that the California Legislature gave authority over the MPN system to the Administrative Director.
The rules promulgated by the Administrative Director require an MPN to have available within specific geographic limits an adequate number of physicians with a “specialty or recognized expertise in treating the particular injury or condition in question.” Specifically CCR §9767.6(e) provides in relevant part:
At any point in time after the initial medical evaluation with an MPN physician the covered employee may select a physician of his or her choice from within the MPN. Selection by the covered employee of a treating physician and any subsequent physicians shall be based on the physician’s specialty or recognized expertise in treating the particular injury, or condition in question. (emphasis added)
The specified geographic area or “access standards” for selecting physicians within the MPN are set forth in CCR §9767.5, which provides:
(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
At this point Holly stated that she relied on two 2015 panel decisions to show that the Defendant failed to meet access standards because one of the three pain management physicians refused to act as a PTP.
I stated that more persuasive decisions have issued since then.3 In Puente v. Napa Valley Unified School District, 2017 Cal. Wrk. Comp. P.D. LEXIS 100 published on February 24, 2017, the WCAB held that as long as the MPN has at least three PTPs of any specialty within a 15-mile/30-minute travel radius who are available to undertake the role of PTP, the MPN will have satisfied its obligation to provide medical treatment.
Similarly in Kazrani v. Los Angeles Unified School District, 2021 Cal. Wrk. Comp. P.D. LEXIS 126 published on May 13, 2021, the WCAB 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.
I also told Holly that her case was identical to that of Murillo v. Western National Group: Travelers Insurance Company (ADJ12031213) published on June 29, 2021, where the WCAB held that the applicant never selected a physician, nor notified MAA to schedule the appointment. They also put a damper on Holly’s argument by holding:
The 20-day time limit for a MAA to schedule an appointment per AD re 9767.5(g) only applies where the MAA is scheduling an appointment with a specialist based on a referral, not to the scheduling of an initial appointment with a primary treating physician.
At this, Holiday Spirit had all but emptied out of Holly. I bought a round of drinks for the bar then advised Holly that it was unlikely that she would prevail on not one but both issues she was bringing to trial.
We agreed to meet again for drinks after another busy day of shopping.
All characters at the Lobby Bar are fictional and the storyline is simply a product of my vivid imagination.
It is important to have a diligent defense attorney who can examine the distinctions of what type of treatment an applicant is seeking, be it a PTP or a specialist, and what rules and laws apply to which scenario.
Puente, Kazrani and Murrillo lack 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.”
Happy holidays, friends, and keep washing your hands.
1 We here at the GTB publication consider ourselves to be “Carries” due to our trade, like hers, as writers and our abiding admiration of hopeless romanticism. Although, that doesn’t mean we don’t miss Samantha, but I digress.
2 MPN access standards and the laws and rules underlying them were discussed at length by a colleague of mine in a recent edition titled George The Bartender’s Dispatches From Online Happy Hour – MPN Access Standards – How Many Specialists? In How Many Specialties?
3 A copy of Puente, Kazrani, and Murillo can be obtained via email request.