These questions were specifically addressed recently in the case of Andre Collins vs. Coca Cola Enterprises ADJ7191152, 2011 Cal. Wrk. Comp. P.D. LEXIS 63. In Collins, the employee treated with a doctor within defendant's MPN. On February 5, 2009, that doctor declared that applicant had become permanent and stationary. On March 16, 2009, applicant received treatment with a different doctor within the defendant's MPN. Defendant argued that applicant was not free to simply change doctors within the MPN but rather had to object to the prior physician's opinions under Labor Code Section 4062 and utilize that process in resolving his entitlement to see a different physician.

The panel of commissioners started their analysis by observing that Labor Code Section 4600 requires an employer to provide the injured worker with medical treatment reasonably required to cure or relieve the worker from the effects of an industrial injury. The commissioners further stated that the employer may elect, pursuant to section 4616, to satisfy its liability to provide medical treatment, pursuant to Section 4600, through the establishment or modification of an MPN.

The commissioners then set forth Labor Code Section 4616.3, subsection (c). This subsection provides:

"If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network."

The commissioners, thus, observed that section 4616.3(c) specifically addressed an injured worker's right to seek the opinion of another physician in the MPN when the employee disputes either the diagnosis or the treatment prescribed by the treating physician.

The panel then compared section 4616.3(c) with section 4062 which provides as follows:

"If either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues... the objecting party shall notify the other party in writing of the objection within 20 days of receipt of the report if the employee is represented by an attorney... If the employee is represented by an attorney, a medical evaluation to determine the disputed medical issue shall be obtained as provided in Section 4062.2, and no other medical evaluation shall be obtained."

The commissioners also noted that section 4062.2 provides:

"If either party requests a medical evaluation pursuant to Section... 4062, either party may commence the selection process for an agreed medical evaluator by making a written request naming at least one proposed physician to be the evaluator. The parties shall seek agreement with the other party on the physician, who need not be a qualified medical evaluator, to prepare a report resolving the disputed issue. If no agreement is reached... either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation."

The commissioners found that the language of section 4616.3(c) is more specific and expressly addresses an employee's dispute over the diagnosis or treatment provided by the original MPN doctor. They held that this more specific language controls over the more general language of section 4062 which addresses objections to "medical determinations made by the treating physician" but does not mention the MPN physician. Accordingly, the commissioners found, applicant was entitled to simply go to the second MPN doctor as soon as he disputed the original physician's prescribed treatment.

Thus, though an employee does not have the freedom of choosing any doctor he or she wishes, as long as the alternative physician is within the defendant's MPN, and as long as applicant states that the change is necessitated as a result of a dispute over "the diagnosis or treatment" being rendered by the initial physician, the employee is free to change doctors. This is a much less cumbersome and preferable outcome for the employee as opposed to having to proceed under the procedures set forth in Labor Code Section 4062 prior to being able to see a new physician.

Reminder: Practitioners should check the subsequent history of this panel decision before citing to it.

Any information or opinion contained in this commentary are not necessarily endorsed by LexisNexis or its affiliates or by the LexisNexis editorial consultants who review panel decisions.

� Copyright 2011 LexisNexis. All rights reserved. This article will be published in an upcoming issue of the California WCAB Noteworthy Panel Decisions Reporter.