California WC Appeals Board Takes Back Physician Ruling

Just a few months after the California Workers’ Compensation Appeals Board ruled that a non-approved physician’s report cannot be used to support workers’ compensation eligibility, it is reconsidering that ruling.

The case has big implications for attorneys and physicians practicing around the workers’ compensation arena, said Julius Young, a California injury attorney, writing in his blog. In Southern California, in particular, many attorneys have been trying to regain “medical control” by finding technicalities that allow their clients to go outside network, he said. And, that has encouraged a large number of physicians in Southern California to treat with their payment deferred until the workers’ compensation claim is resolved.

In April, the entire Appeals Board ruled that a person who alleged they had been injured at work could not go outside of their workers’ compensation plan’s medical provider network to get an opinion or treatment without prior approval. All five members of the Board concurred with the decision, though two members expressed minor dissents.

The case involved Elayne Valdez, who worked for Warehouse Demo Services, of Kirkland, Washington, which provides people to do food demonstrations for the membership warehouse store, Costco. Valdez, who lives in Southern California, had been hurt on the job and was receiving treatment from her plan’s medical provider. However, she did not think she was getting better. So, on the advice of her lawyer, Valdez went to a different physician, without asking permission from her workers’ compensation insurer, or even informing them she was doing so.

She then used a report from that physician to establish temporary disability for a period of almost four months, and an administrative law judge accepted that report.

Her workers’ compensation provider appealed to the Board.

The Appeals Board said that California regulations clearly state that a person must see a network physician if the insurer has a network, and that there are provisions within those regulations that allow the injured person to see up to two different network physicians if they are not getting the opinion or treatment they want.

However, Valdez treated with her first physician for only three weeks and did not avail herself of the in-network referral protocols, the Board said. And, given the regulations, a non-network physician’s report is clearly inadmissible in disputes and the physician’s work need not be reimbursed.

The decision showed that the Appeals Board “has run out of patience with the lawyers and claimants who attempt to circumvent the MPN [medical provider network] and QME [qualified medical evaluator] system,” Young said.

This month, however, the Board announced that it will reconsider its decision.

In announcing its reconsideration, the Board did not give its specific reasons for going over its decision again. It said only that Valdez’s attorneys petitioned, and the Board thought that “reconsideration must be granted.”

In his blog, Young said the decision does not adequately allow for other, often legitimate situations that are not like the Valdez case at all. For instance, what if a worker with an injured back returns to work when they know they are not ready because their network physician tells them to return, and then ends up in the emergency room, where an MRI finds a herniated disk.

That type of report should be admissible and reimbursable, he said.

The Board “has set forth a ham-handed rule that is overboard,” Young said.

Topics California Legislation Workers' Compensation