Stevens: Revisiting the Valdez Determination’s Impacts on Non-MPN Experiences| Employees Compensation Information

Of Daniel R. Stevens

Friday, August 6, 2021 | 0

When analyzing whether someone is liable for temporary disability benefits, it is important to remember that the 2013 Supreme Court ruling in Valdez v WCAB stated that non-MPN reports are still allowed to be temporary Receive disability benefits.

Daniel Stevens

Let’s take a step back for a second and review what we all know about medical provider networks.

We all know that if a claim is accepted in part or in full, the applicant must address in the MPN for the accepted body parts. We also know that if an applicant is to be treated in the MPN, the treatment applied for will not be approved by the use test and will be deemed to be procured at the injured worker’s own expense.

With me so far? Excellent.

When the defense thinks about MPN, we generally look at it through the lens of treatment. This makes sense because that is what the Workers Compensation System is supposedly about – treating injured workers, restoring them to their pre-injury state and getting them back to work.

While the applicant is receiving this treatment, we sometimes see applicants’ lawyers focus on the temporary disability issue before maximum medical improvement is noted. This leads to the following questions: What, if any, is the impact of a non-MPN doctor reporting? Can the defense just ignore the report since it was not prepared by an MPN doctor? Can you also cancel the temporary disability pension for this reason?

The answer is a clear no”. While we wholeheartedly cherish our MPNs, they are not sacrosanct. Just because a report is from a non-MPN doctor doesn’t mean it is worthless or invalid.

In fact, medical-issued reports that were not issued by an MPN are still acceptable in most situations, and you cannot cancel TD services just because the doctor who issued them is not listed on the applicable MPN.

Although it was a long eight years, let’s look at the Supreme Court decision in the Valdez v. Workers’ Comp. Appeal Committee that came out around the time SB 863 was getting underway. This is important because one of the sections of the Labor Code at issue in this decision has been amended as part of SB 863.

I am talking about Section 4605 of the Labor Code. The main takeaway from this section is that a report prepared by an injured worker at their own expense cannot be the only basis for an award. Nothing in this section indicates that these messages are invalid or irrelevant.

The problems in Valdez

The main dispute in the Valdez decision was whether or not a report that the complainant himself had drawn up by a doctor without an MPN was admissible in proceedings relating to TD services.

The defense argued that Section 4616.6 of the Labor Code prohibits the approval of such reports. However, this section indicates that “[n]o Additional examinations are ordered by the complaints committee and other expert opinions are not permitted [sic] to resolve any controversy that may arise from this article. “

The Supreme Court clarified that Section 4616.6 of the Labor Code is limited to matters arising during the independent medical review process described in Article 2.3 and also noted that Article 2.3 does not address disability benefits.

The Supreme Court then compared this to the wording in Section 4605 of the Labor Code, which the Supreme Court believed had long allowed injured workers to consult private (non-MPN) doctors at their own expense. Also in this section of the code there is nothing that expressly prohibits the admissibility of self-generated reports by non-MPN doctors.

This is a friendly reminder that you cannot cancel an applicant’s TD services just because the report was written by a non-MPN doctor.

Conversely, an applicant cannot use a report that it has produced itself and that was not issued by an MPN doctor alone to justify the granting of TD services. For this purpose, such reports may only be used in conjunction with other permitted reports.

In analyzing the then recently amended Labor Code Section 4605, the Supreme Court made it explicitly clear that such reports cannot be the sole basis for the award of compensation (TD benefits).

Finally, in the Valdez decision, the Supreme Court was kind enough to emphasize that the amendments to SB 863 of the medical-legal procedure in accordance with Section 4060 do not preclude the admissibility of privately held medical reports for the purpose of settling compensation disputes (AOE / COE provisions) .

The applicant’s attorney is therefore not prohibited from finding a non-MPN doctor who will produce a positive opinion that can be presented to a qualified medical examiner to support the position that an injury is indemnifiable. However, there are admissibility restrictions in other medical law issues.

Privately managed expert reports are not permitted if they are obtained solely to refute an agreed medical expert report (Batten v. Workers’ Comp. Appeals Board (2015)).

graduation

It is important to remember that Valdez’s decision led to the following realizations:

• Non-MPN reports are allowed for the purpose of TD decision.
• However, non-MPN reports cannot be the sole basis for a TD award. Other reports must be demonstrated to warrant a TD issuance.
• Non-MPN reports from privately commissioned experts may or may not be permissible due to the specific circumstances of the individual case.

Keeping these concepts in mind when assessing temporary disability issues can help you go the right way and influence your strategic decisions during the medical investigation and process. Valdez’s decision is a decision of the California Supreme Court, so it cannot and should not be ignored.

Daniel Stevens is an employee compensation attorney and partner at Bradford & Barthel’s Ventura site. This entry from the Bradford & Barthel blog is published with permission.