Calif Edition Banner March 2010
Vol 2, Issue 26

Find Solutions & Strategies                             June 27, 2011

Medical Provider NetworkLiving in a Medical Provider Network World
Do injured workers have to utilize LC 4062 when trying to change treating physicians?
In This Issue
* RECENT PANEL DECISION: WCJ disqualification
* JOB POSTING: Defense attorney
* NEWS HEADLINES: SCIF seeks to expand out of state

A Note From the Editor

Robin Kobayashi 2010
Dear WC Professionals: 


In this issue of the eNewsletter, we've covered everything from MPNs to Jurisdiction to WCJ Disqualification. While our eNewsletter is California-specific, I'm sure you would agree that we need to keep an eye on news and developments in other states that could impact our workers' comp system.
Note: The next issue of this eNewsletter will go out on Tuesday, July 5.
Robin E. Kobayashi, J.D.
LexisNexis Editorial & Content Development
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mpn world

In a Post Medical Provider Network World, Does the Injured Worker Have to Utilize Labor Code Section 4062 When Attempting to Change Treating Physicians?  It is hard to believe that over seven years have passed since SB 899 was signed into law. One of the most significant changes caused by SB 899 was the change in an employee's ability to control medical treatment. For many years prior to SB 899, an employee, after the first 30 days of the injury, was free to select a doctor of their choice and if they did not like that doctor, was free to select a different doctor. The employee was not limited to one change of physician, but rather, was free to change doctors multiple times if necessary. The patient/physician relationship was considered sacred by many and it was unthinkable that an injured employee would not be capable of seeing a physician of his or her choice. Subsequent to SB 899, we now live in a Medical Provider Network (MPN) world. Read more subscribers can link to the cases and statutes cited in this article. Be sure you're already logged onto your account.

state jurisdiction and reciprocity

FootballA new LexisNexis Emerging Issues Analysis article by Thomas A. Robinson, the senior staff writer for Larson's Workers' Compensation Law, examines the collision of states' jurisdiction in workers' compensation cases, particularly where injured pro football players are involved. California is a popular destination for professional football players, at least for players who are seeking workers' compensation benefits. The generosity of the California system has encouraged hundreds of NFL players to file claims there, even when they played for teams who were located in other states.


Some states, including Florida, exclude professional athletes from their workers' compensation systems, and now Florida has sought to prevent athletes who were under contract with Florida teams from pursuing workers' compensation benefits in California or other states [see HB 723, reciprocity statute, signed by Governor Rick Scott on 6/17/2011].


The Florida legislature thought it had found a way to keep players in Florida from scoring in the California workers' compensation end zone. But as Thomas A. Robinson writes, there could be a potential flaw in the Florida legislation, and the California courts may well review the new Florida reciprocity statute and find it doesn't apply to Florida pro football players. Moreover, as the recent Maryland case Pro-Football, Inc. v. Tupa shows, the state where the injury occurs will not easily give up jurisdiction over the injury claim.


Thomas A. Robinson on Did Florida Legislature Fumble in Trying to Limit Workers' Compensation Coverage for Pro Football Players? To purchase the article at the LexisNexis Bookstore, click here 



NOTE:This free eNewsletter reports only a handful of panel decisions each month. If you want notification of all 50 to 65 noteworthy panel decisions added each month to the Lexis database, please consider purchasing our new panel decisions reporter. Panel decisions are citeable, but not binding precedent.


Workers' Compensation Judges; Disqualification. WCAB rescinded WCJ's decision in which she found that applicant suffered industrial injury to her wrists, hands, shoulders, neck and psyche during period ending 1/27/2006, causing 57 percent permanent disability, and remanded matter to Presiding WCJ for re-assignment, when WCAB found that WCJ erred by conducting her own investigation of defendant's rater's company through an internet search of the company's website without notice to parties, and by considering results of independent investigation in making her Findings and Award, thereby giving appearance of impartiality. See Madrigal panel decision.


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

blogs at the lexisnexis workers' comp law community 


Fraud Sign

Workers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (6/23/2011) - Prison Manager and Police Officer Active In Baseball While Too Disabled To Work, by LexisNexis Workers' Compensation Law Community Staff. Read it.


Cal Comp CasesCal. Comp. Cases June Advanced Postings (6/22/2011). Here's the third batch of advanced postings for the June 2011 issue. subscribers can link to the complete headnotes and summaries. Read it
CWCICalifornia Workers' Comp Medical Mileage Rate Increased, by CWCI. Read it.
Mark PopolizioWilson v. State Farm: Court Rules That Insurer Did Not Act in "Bad Faith" by Delaying Payment of a Settlement Pending Determination of Medicare's Conditional Payment Amount, by Mark Popolizio, Esq. Read it.
job posting 
Goldman Magdalin Krikes

WC Defense Associate. Brea office of Goldman, Magdalin & Krikes, LLP seeks attorney with minimum 5 years workers' comp defense experience, competitive salary & benefits. Submit in Word format cover letter, resume, salary history/requirements to [email protected].


 MSP Red CC 

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Jennifer C. Jordan, Esq., Editor-in-Chief

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- Tim Nay, Esq., Law Offices of Nay & Friedenberg, Portland, Oregon. Mr. Nay is a co-founder of the National Alliance of Medicare Set-Aside Professionals (NAMSAP). 


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Questions? Contact [email protected].


Workers' Comp Executive:

FLASH: State Fund Seeks to Cover Employees Outside California.

Copyright 2011 Providence Publications, LLP. All rights reserved. Reprinted with permission.


Other News:

CA: John Duncan, Former DIR Head, Says Job May Be Harder for His Successor.

CA: DWC Counts Down to June 27 Launch of JET File.

CA: DWC Proposes Changes to QME Regulations.

CA: WCIRB Posts 2010 Calif Workers Comp Losses, Expenses.

CA: SCIF President Says AB 228 Would Simplify Workers Comp for Calif Employers.

CA: SCIF Issues Letter to MPN Participants Limiting Prescriptions of Opioids.

CA: Orange County DA Looks for Victims of Alleged $17M Workers Comp Overbilling Scheme.

CA: Samuel Sorich, Former ACIC President, Joins Barger & Wolen as Of Counsel.

CA: Bay Area Building Contractor Sentenced to Prison, $12M in Restitution for Insurance Fraud.

CA: Warehouse Manager Arrested for Workers Comp Fraud.


citeability of panel decisions

PDCITEPractitioners should proceed with caution when citing to a panel decision that hasn't been designated as a "significant panel decision" by the Workers' Compensation Appeals Board, and should also verify the subsequent history of the panel decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers' compensation judges [see Gee v. Workers' Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)]. subscribers can link to the cases cited above.

NPD reporter banner

NPDDesigned specifically for subscribers only, this monthly reporter saves you research time so that you can quickly find recent panel decisions on key topics.


We do the legwork for you: Our editorial consultants pour through hundreds of cases to find noteworthy decisions that you should know about.

What you get each month: Brief summaries of typically 40 to 65 cases, arranged by topic. Commentary articles written by guest contributors.
How you'll get it: (1) PDF document (sent via email), which allows Lexis subscribers to link directly to the WCAB decisions on; and (2) Print version, which can be stored in a binder.
View sample: Click here
Order now: Contact [email protected] 
mpn, continued...


The employee can no longer choose any doctor, but rather, must select a doctor from the MPN. The question comes up, what if the employee is uncomfortable with the MPN doctor selected; can the employee simply choose a different doctor within the MPN? Must the employee object pursuant to Labor Code Section 4062 and have a Panel Qualified Medical Evaluation (PQME) address their entitlement to see a different doctor within the MPN?


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.

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enewsletter archives
Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not any linking problems to [email protected].

June 20, 2011: Sanctions: Three-Cent Dispute

June 13, 2011: A Balanced Approach to Litigation

June 6, 2011: Post-Valdez Defense Protocols

May 31, 2011: Stress-Related Compensable Consequence Injuries

May 23, 2011: Developing the Record

May 16, 2011: Overpayments

May 9, 2011: Third Party Cases

May 2, 2011: Temporary Total Disability

April 25, 2011: Non-MPN Physician Reports

April 20, 2011 (Special Alert): Valdez En Banc

April 18, 2011: 2011 Alphabet Soup

April 11, 2011 (Special Alert): Hernandez significant panel decision

April 11, 2011: Rule 38 and Medical Examiner Reports

April 4, 2011: Penalties Post SB-899

March 28, 2011: Verification and Lien Claimants

March 21, 2011: Workers' Comp and Earthquakes

March 17, 2011 (Special Alert): Guitron En Banc

March 14, 2011: LC 5710 Attorney's Fees

March 7, 2011: Mediation

February 28, 2011: Arbitrations
February 21, 2011: AMA Guides Rating: Roles of Rater, Judge, Physicians
February 14, 2011: In Memoriam: Carrie Nevans
February 7, 2011: Good Faith Personnel Actions
January 31, 2011: Service in EAMS

January 24, 2011 (addendum): Sanctions; EAMS rules
January 24, 2011: Public Self-Insured Employers 

January 17, 2011: CHSWC Report on Liens 

January 10, 2011: Temporary Workers 

January 3, 2011: Permanent Total Disability & Total Loss of Future Earning Capacity



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