Bruce Knight, v. United Parcel Service; and Liberty Mutual Insurance Company

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1 WORKERS’ COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 5 Case Nos. AHM 127807 AHM 129147 BRUCE KNIGHT, Applicant, OPINION AND DECISION AFTER RECONSIDERATION (EN BANC) 6 vs. 7 8 9 UNITED PARCEL SERVICE; and LIBERTY MUTUAL INSURANCE COMPANY, Defendants. 10 11 INTRODUCTION 12 We granted defendant’s petition for reconsideration of the December 9, 2005 Findings and 13 Award of the workers' compensation administrative law judge (WCJ) to further study issues raised 14 by this case regarding a medical provider network (MPN) established by an employer or insurer 15 to provide medical treatment pursuant to Labor Code sections 4616 through 4616.7. 1 Because of 16 the importance of the legal issues presented, and in order to secure uniformity of decision in the 17 future, the Chairman of the Appeals Board, upon a majority vote of its members, assigned this case 18 to the Appeals Board as a whole for an en banc decision. (Lab. Code, § 115.) 2 19 We hold that an employer or insurer’s failure to provide required notice to an employee of 20 rights under the MPN that results in a neglect or refusal to provide reasonable medical treatment 21 renders the employer or insurer liable for reasonable medical treatment self-procured by the 22 employee. In this case, defendant is liable for medical treatment self-procured by applicant 23 24 25 26 27 1 All further statutory references are to the Labor Code. Attached to the petition for reconsideration are copies of documents that have already been received into evidence, or that have already been made part of the legal file. Such documents are not to be attached as exhibits to petitions for reconsideration, and they have been recycled. (Cal. Code Regs., tit.8, § 10842.) 2 The Appeals Board’s en banc decisions are binding precedent on all Appeals Board panels and workers’ compensation administrative law judges. (Cal. Code Regs., tit. 8, § 10341; City of Long Beach v. Workers’ Comp. Appeals Bd. (Garcia) (2005) 126 Cal.App.4th 298, 313, fn. 5 [70 Cal.Comp.Cases 109]; Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal.App.4th 1418, 1425, fn. 6 [67 Cal.Comp.Cases 236]; see also Govt. Code, § 11425.60(b).) 1 because it neglected or refused to provide reasonable medical treatment by failing to provide 2 required notice to applicant of his rights under the MPN. (See Section III at pp. 14-16, infra.) 3 FACTS 4 In 1973, applicant was first employed as a delivery person/driver with United Parcel 5 Service (UPS), insured by Liberty Mutual Insurance Company (Liberty). On February 22, 2005, 6 he was delivering a parcel in inclement weather when he slipped on a wet driveway and fell on his 7 right side, injuring his right wrist, arm and shoulder. Industrial injury was acknowledged and he 8 was referred by UPS to a U.S. HealthWorks clinic for examination and treatment. X-rays were 9 taken and medication was dispensed. He was released to light duty for two days and was then 10 returned to full duty. However, his elbow and shoulder symptoms worsened and he returned to 11 U.S. HealthWorks. U.S. HealthWorks referred him to Anthony Zoppi, M.D. for a consultation. 3 12 In his April 26, 2005 report to Liberty, Dr. Zoppi provided a summary of his “examination, 13 findings, diagnosis and treatment recommendations” following his “initial orthopedic evaluation” 14 conducted that date “at the request of the treating physician” as authorized by Liberty. During his 15 examination, Dr. Zoppi noted tenderness and restricted range of motion in the wrist, tenderness in 16 the right elbow, and tenderness and “pain with impingement maneuver both Neer and Hawkins” in 17 the right shoulder. He provided a diagnosis of “Right shoulder pain/strain” and “Right wrist 18 scaphoid nonunion, old nonindustrial injury” and described his “consultation with the patient in 19 which the diagnosis was explained in laymen’s terms.” He noted a need to “see the patient back 20 following the completion of x-rays” of the shoulder to evaluate the potential for “underlying 21 acromioclavicular joint degenerative joint disease” but concluded that applicant “can continue 22 with his usual and customary work activities without the need for work restrictions.” He wrote 23 that “Treatment recommendations were discussed and/or communicated with the patient’s treating 24 physician.” 25 /// 26 27 3 This opinion does not address the reasonableness of medical treatment provided during the first 30 days after the date of injury. KNIGHT, Bruce 2 1 It appears that copies of Dr. Zoppi’s report were sent to “Treating Physician” and 2 “U.S.HealthWorks Medical Group.” However, there is no evidence that the report was ever sent 3 to applicant. Nor is there any evidence that either U.S. HealthWorks or Dr. Zoppi was part of an 4 MPN, or that applicant was being provided medical treatment through an MPN. There is no 5 evidence that applicant was notified that an MPN physician had been designated as his primary 6 treating physician. There is no evidence applicant was notified of his right to choose his primary 7 treating physician within the MPN after the first visit. Nor is there evidence of any notice to him 8 of his right to obtain second and third opinions regarding any MPN diagnosis or treatment plan. 9 Prior to attending his appointment with Dr. Zoppi, applicant had contacted an attorney 10 regarding his claim. In an April 22, 2005 letter, the attorney advised Liberty that applicant was 11 designating the Intercommunity Medical Group (Robert Hunt, M.D.) as his primary treating 12 physician. It appears that at some point Dr. Hunt contacted Liberty to confirm insurance coverage, 13 but was told he would not be paid for any services he provided because he was not in Liberty's 14 MPN. 4 15 On May 11, 2005, Dr. Hunt contacted applicant’s attorney and advised that he would not 16 treat applicant unless Liberty changed its position and authorized coverage. This is the first 17 evidence of any indication to applicant or his attorney that there was an MPN. That same date, the 18 attorney contacted Liberty by telephone and requested a list of MPN providers. 19 20 On May 13, 2005, Liberty telephoned the attorney’s office and offered to “go over [the MPN list] on the phone” or to send it by e-mail because it was “about 1,980 pages.” 21 On May 16, 2005, Liberty was informed that the attorney did not have an e–mail address 22 and his staff again asked that the list be sent by regular mail. Liberty responded that the list of 23 MPN providers needed to be requested from the “California Division of Compensation.” 24 /// 25 26 27 4 Portions of the chronology of contacts between applicant's attorney, the physicians and Liberty are taken from Applicant’s Exhibit 7, which was received into evidence without objection. The exhibit purports to be the notes of applicant’s attorney’s staff regarding their effort to obtain a list of MPN physicians from defendant. Quotations are taken from that exhibit unless otherwise stated. KNIGHT, Bruce 3 1 On May 19, 2005, the attorney’s staff sent a written request for the MPN list to the address 2 provided by Liberty. 3 telephoned the attorney’s staff on May 24, 2005, and told them to contact Liberty for the list of 4 MPN providers. She also provided a telephone number for Liberty. A woman named Kathy “from California Division of Compensation” 5 On May 25, 2005, the attorney’s staff left a telephone message requesting a list of MPN 6 providers at the telephone number provided by Kathy. Another message requesting a list of the 7 MPN providers was left by the attorney on May 31, 2005. 8 On June 1, 2005, the attorney received a return telephone message that Liberty’s adjuster 9 was out on medical leave. The attorney that same date sent another written request for the list of 10 MPN providers and left a voice message with another person at Liberty requesting the list. On 11 June 6, 2005, applicant’s attorney’s staff again directed verbal and written request by facsimile to 12 Chuck Allen at Liberty as follows: 13 14 15 16 17 18 19 “Please be advised we have requested a copy of the Medical Provider Network List (MPN) from the following, claims adjuster Mr. Frank Quesada on 5/11/05, who advised us we needed to request list from California Division of Compensation. Request was made on 5/19/05, Kathy advised our office to request it from Ann Taintor. Request once again was made on 6/1/05, per Ms. Taintor we now have to obtain it from you. Due to this delay our client is without medical care. “Request is hereby made we be provided with copy of Medical Provider Network List (MPN) as soon as possible.” (Emphasis added.) 20 Not having received a list of MPN providers, the attorney on June 9, 2005, faxed a letter to 21 Mr. Quesada at Liberty advising that “Pursuant to Labor Code, sections 4600 and 4603.3 (sic) and 22 Section 9783 Of the Rules and Regulations” applicant was selecting his treating physician to be 23 Norwalk Orthopedic Surgery (Jacob Rabinovich, M.D.). 5 Enclosed with that letter was a copy of 24 the attorney’s letter to applicant confirming that an appointment was scheduled with Dr. 25 Rabinovich for June 16, 2005. 26 27 5 There was no section 4603.3 at that time. KNIGHT, Bruce 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 On June 14, 2005, Dana Previty, a senior claims case manager with Liberty, sent a letter to applicant as follows: “Recent changes in California workers' compensation law, specifically SB 899, now allow insurers and self-insured employers to direct injured employees to a medical provider network (MPN) for medical treatment. In response to these changes, your employer has implemented the Liberty Mutual UPS Medical Provider Network (MPN) effective, January 1, 2005, for any workers' compensation claims. “This letter is acknowledgement that you have a workers' compensation injury or illness claim at implementation time of the Liberty Mutual UPS MPN. Our records indicate that your current treating provider, Dr. Robert Hunt is not part of the MPN. “In order to confirm you continue to receive appropriate medical care please take a few moments to verify the information that best applies to your current treating physician by checking the appropriate box below and returning you response within 10 days… “ My current physician is part of the Liberty Mutual UPS MPN. You may continue to treat with this provider. If you need further treatment from another specialist, you and your physician must select a specialist from within the MPN. Contact your employer or the Claims Case Manager if you need assistance in locating an MPN specialist. " My current physician is not part of the Liberty Mutual UPS MPN. You may qualify to continue treatment with your current provider under the Liberty Mutual UPS MPN Transfer of Treatment (TOC) Plan if your condition is acute, serious or chronic, if treatment is for remission, is to prevent deterioration, is a terminal illness or for a scheduled surgery or procedure that will occur within 180 days. My current physician is not part of the Liberty Mutual UPS " MPN network. I do not have any of the conditions above; therefore, I will secure services from another MPN physician. If I need assistance in locating another physician, I will call my employer or Claims Case Manager. “You must receive confirmation from the MPN to continue using a non-MPN provider. The MPN will contact your non-MPN physician to confirm his/her willingness to continue providing you with treatment under the MPN and the MPN will notify you as to your physician’s decision. In the event the physician is not able to continue providing you with medical treatment and services the 27 KNIGHT, Bruce 5 1 MPN will advise you to seek treatment from an MPN physician immediately.” (Emphasis in original.) 2 3 4 The letter concluded with a request that any questions be directed to the employer or the Claims Case Manager. A copy of the letter was sent to applicant’s attorney. The June 14, 2005 letter from Dana Previty is the first evidence of any written notice from 5 6 7 8 9 10 11 12 13 14 Liberty to applicant or his attorney that refers to the existence of an MPN. However, the letter did not explain where and how applicant was to obtain medical treatment. The letter does not state whether treatment was initiated in the MPN by the employer’s referral of applicant to U.S. HealthWorks or by its referral of applicant to Dr. Zoppi. It does not identify any MPN physician that had been designated as the primary treating physician. It does not notify applicant of his right to change the primary treating physician and choose a new primary treating physician within the MPN. It does not notify him of his right to obtain second and third medical opinions within the MPN or of his right to obtain review by an independent evaluator. It does not transmit a list of MPN physicians notwithstanding the numerous requests for the list by applicant’s attorney. On a July 7, 2005, applicant’s attorney wrote Frank Quesada at Liberty: 15 “Please be advised that we are referring our client for medical treatment pursuant to Labor Code section 4600. Our client reported the injury but referral for medical treatment by the employer has been refused and/or neglected. 16 17 “Be advised we shall seek penalties for each instance of refusal to authorize or any unreasonable delay in authorizing all medical treatment as indicated by our doctors(s).” 18 19 20 Applicant was seen again by Dr. Rabinovich on July 28, 2005. Following an MRI and 21 EMG and nerve conduction studies, Dr. Rabinovich in his report of July 28, 2005 diagnosed, “1) 22 Tendinitis/impingement syndrome, right shoulder per MRI scan. 23 syndrome, per neurodiagnostic tests. 3) Bilateral ulnar nerve entrapment at the cubital fossae, 24 clinically on the left and per neurodiagnostic tests on the right.” Surgery was recommended. 25 /// 26 /// 27 /// KNIGHT, Bruce 6 2) Bilateral carpal tunnel 1 2 3 4 5 6 7 8 On August 31, 2005, Dana Previty on behalf of Liberty sent a letter to applicant, with a copy to his attorney, as follows: “This letter concerns the Liberty Mutual UPS Medical Provider Network (MPN). It is our understanding that Robert W. Hunt, MD (Intercommunity Medical Group) and Jacob Rabinovich (Norwalk Orthopedic Surgery) are not participating in the Liberty Mutual MPN. “As you were aware the MPN was in place and decided to change to a NON UPS MPN physician, we are considering any and all treatment with these doctors self-procured. Therefore, you will be responsible for all medical treatment and service charges. 10 "It is also important to note that if you elect to continue treating with either of these doctors, you will be responsible for all medical treatment and service charges. 11 “Please direct any questions regarding this letter to your attorney. Thank you.” 9 12 13 14 15 16 17 18 19 20 Also on August 31, 2005, Dana Previty on behalf of Liberty sent the following letter to both Dr. Hunt and Dr. Rabinovich: “This letter concerns the Liberty Mutual UPS Medical Provider Network (MPN). It is our understanding that you are not participating in the Liberty Mutual UPS MPN. “As Mr. Knight was aware the MPN was in place and elected to treat with you anyway, we are considering any and all treatment with you self-procured. Therefore, Mr. Knight will be responsible for all medical treatment and service charges. “Also be advised that if Mr. Knight elects to continue treatment with you, he will be responsible for all medical treatment and service charges.” 21 The physicians were requested to contact Liberty with any questions. 22 Also on August 31, 2005, Liberty wrote applicant’s attorney: 23 24 25 26 “This letter concerns the Liberty Mutual UPS Medical Provider Network (MPN). “I received your letter requesting a copy of the UPS MPN list. The file is very large, therefore I would like to email it to you. I spoke with Irene in your office today and she advised you would be out of the office until September 14, 2005. She was unable to give me 27 KNIGHT, Bruce 7 1 2 3 your email address. Therefore I have enclosed a copy of all UPS MPN ortho’s (sic) as of July 11, 2005. “Please contact me with you email address so that I may supply you with a copy of the UPS MPN list, should you desire a copy.” 4 Any list of providers enclosed with that letter or otherwise sent by Liberty to applicant or his 5 attorney is not in evidence. 6 In none of the correspondence described above did Liberty explain where or how applicant 7 was to obtain medical treatment. He was never notified that treatment had or had not been 8 initiated in the MPN. 9 designated as primary treating physician. He was never notified of his right to change any 10 designated primary treating physician and his right to select a new primary treating physician of 11 his choice within the MPN. He was never notified of his right to obtain second and third medical 12 opinions within the MPN or of his right to obtain review by an independent evaluator. Instead, 13 Liberty wrote only that the medical treatment he sought was unauthorized, without tendering any 14 information about how he was to obtain treatment for the admitted injury. He was never notified that an MPN physician had or had not been 15 On October 7, 2005, applicant filed a Declaration of Readiness to Proceed to Expedited 16 Hearing on the issues of his entitlement to reasonable medical treatment and temporary disability 17 indemnity. Defendant admitted specific injury to applicant's right shoulder, right elbow, right 18 wrist and right upper extremity, and admitted a need for medical treatment. However, defendant 19 denied liability for all treatment self-procured by applicant outside the MPN. 20 At the hearing on November 29, 2005, the above described materials were received into 21 evidence along with applicant’s testimony that he never received “any notice of his requirement to 22 belong to an M.P.N. prior to his injury or after his injury.” 6 On December 9, 2005, the WCJ 23 issued his decision, finding that defendant had waived its right to require medical treatment 24 25 26 27 6 Defendant offered no evidence of any notices to applicant other than as described above. Although Applicant testified that he did not receive the June 14, 2005 letter from defendant because of a change of address, it appears a copy was sent to applicant’s attorney. In all events, the letter does not include information required by section 4613.3 and California Code of Regulations, title 8, section 9767.12(a). KNIGHT, Bruce 8 1 through the MPN, and that it was estopped to deny coverage of medical treatment self-procured by 2 applicant. 7 Applicant was awarded “surgery as recommended by Dr. Rabinovich.” 3 Defendant petitioned for reconsideration of the WCJ's findings and award, contending that 4 “all appropriate notices were sent to the applicant with regard to the Medical Provider Network” 5 and requested that he be directed “to obtain treatment with a doctor on the Medical Provider 6 Network list.” 7 We find on this record that defendant is liable for medical treatment self-procured by 8 applicant because it neglected or refused to provide reasonable medical treatment by failing to 9 provide required notice to applicant of his rights under the MPN. 10 DISCUSSION 11 12 I. An Authorized MPN May Be Used To Satisfy The Obligation Of An Employer Or Insurer To Provide Reasonable Medical Treatment. 13 An employer or its insurer is obligated to provide all medical treatment “that is reasonably 14 required to cure or relieve the injured worker from the effects of his or her injury.” (Lab. Code, § 15 4600(a).) "In the case of his or her neglect or refusal reasonably to do so, the employer is liable 16 for the reasonable expense incurred by or on behalf of the employee in providing treatment." 17 (Lab. Code, § 4600(a).) An employer will not be relieved of the duty to furnish medical care 18 absent good cause, and section 4600 has been liberally interpreted in favor of the employee’s right 19 to obtain reimbursement. (California Union Ins. Co. v. Industrial Acc. Com. (Mitchell) (1960) 183 20 Cal.App.2d 644 [25 Cal.Comp.Cases 172]; Simien v. Industrial Acc. Com. (1956) 138 Cal.App.2d 21 397 [21 Cal.Comp.Cases 10].) 22 Before January 1, 1976, an employee could not choose a physician to treat an industrial 23 injury if the employer made an unequivocal tender of medical treatment reasonably calculated to 24 25 26 27 7 Although both the WCJ's December 9, 2005 decision and defendant's petition for reconsideration reference Case No. AHM 129147, that case involves a denied claim of cumulative trauma injury to various body parts. It was agreed at trial that the only issues before the court were those presented in this Case No. AHM 127807 regarding the claim of specific injury. The parties stipulated that Case No. AHM 129147 "has no impact upon the issues presented." Accordingly, Case No. AHM 129147 is not addressed as part of this decision. Because we find that defendant neglected or refused to provide reasonable medical treatment, we do not reach the questions of waiver or estoppel. KNIGHT, Bruce 9 1 cure or relieve from the effects of the injury. However, if the employer had notice of the injury, it 2 was obligated under section 4600 to promptly notify the employee about how and where to obtain 3 medical treatment. The employer could not be passive; instead it had an affirmative duty to be 4 active in offering treatment to the injured worker and in instructing the employee as to which 5 physician to see. (United States Casualty Co. v. Industrial Acc. Com. (Moynahan) (1954) 122 6 Cal.App.2d 427 [19 Cal.Comp.Cases 8]; Draney v. Industrial Acc. Com. (1949) 95 Cal.App.2d 64 7 [14 Cal.Comp.Cases 256] (Draney).) The failure to provide that required notice of information 8 was recognized to be neglect or refusal to provide reasonable medical treatment even if the 9 employee did not ask for medical attention before self-procuring care. (Leadbettor v. Industrial 10 Acc. Com. (1918) 179 Cal. 468 [5 I.A.C. 233]; Bethlehem Steel Co. v. Industrial Acc. Com. 11 (Seaquist) (1945) 70 Cal.App.2d 382 [10 Cal.Comp.Cases 171].) 12 equivocal and inadequate offer of medical treatment, the employee could select his or her own 13 physician and obtain reimbursement for the reasonable cost of reasonable self-procured medical 14 treatment pursuant to section 4600. (Voss v. Workers' Comp. Appeals Bd. (1974) 10 Cal.3d 583, 15 588 [39 Cal.Comp.Cases 56] (Voss); Zeeb v. Workers' Comp. Appeals Bd. (1967) 67 Cal.2d 496, 16 501-503 [32 Cal.Comp.Cases 441] (Zeeb); McCoy v. Industrial Acc. Com. (1966) 64 Cal.2d 82, 86 17 [31 Cal.Comp.Cases 93] (McCoy).) If the employer made an 18 Effective January 1, 1976, section 4600 was amended to provide that “after 30 days from 19 the date the injury is reported, the employee may be treated by a physician of his own choice or at 20 a facility of his own choice within a reasonable geographic area.” (Lab. Code, § 4600(c).) In 21 addition, an employee was allowed under certain circumstances to select his or her personal 22 physician to provide treatment during the 30 day period following injury. (Lab. Code, § 4600(d).) 23 An employee also had an essentially unlimited ability to change treating physicians. (Ralphs 24 Grocery Company v. Workers' Comp. Appeals Bd. (Lara) (1995) 38 Cal.App.4th 820 [60 25 Cal.Comp.Cases 840] (Lara).) Thus, the employee had the choice to select any treating physician, 26 limited only by the employer’s right to show good cause in a petition to the Administrative 27 Director (AD) of the Division of Workers' Compensation that an order should issue directing the KNIGHT, Bruce 10 1 employee to select a new treating physician from a list of five selected by the employer. (Lab. 2 Code, § 4603; Cal. Code Regs., tit. 8, § 9786.) 3 With the enactment of Senate Bill 899, section 4600(c) was again amended. It now 4 provides: “Unless the employer or the employer's insurer has established a medical provider 5 network as provided for in Section 4616, after 30 days from the date the injury is reported, the 6 employee may be treated by a physician of his or her own choice or at a facility of his or her own 7 choice within a reasonable geographic area.” This amendment added another method by which an 8 employer or insurer could meet its obligation to provide reasonable medical treatment by referring 9 the employee to an MPN. (Lab. Code, §§ 4600(c) and 4616-4616.7; see also Cal. Code Regs., tit. 10 8, §§ 9767.1-9767.15.).) 11 An MPN is established by an employer or insurer subject to the approval of the AD. (Lab. 12 Code, § 4616; Cal. Code Regs., tit. 8, § 9767.3.) Among other things, the regulations require that 13 the employer or insurer’s application for approval of an MPN include a statement of how the MPN 14 will comply with the “employee notification process” and the “second and third opinion process.” 15 (Cal. Code Regs., tit. 8, §§ 9762.1 through 9762.3.) The statute and regulations also impose 16 several other obligations upon both the insurer/employer and the injured worker. 17 18 19 20 21 22 23 24 25 26 27 In this case, we specifically address the provisions of section 4616.3 and California Code of Regulations, title 8, section 9767.12(a). Section 4616.3 provides in full: “(a) When the injured employee notifies the employer of the injury or files a claim for workers' compensation with the employer, the employer shall arrange an initial medical evaluation and begin treatment as required by Section 4600. "(b) The employer shall notify the employee of his or her right to be treated by a physician of his or her choice after the first visit from the medical provider network established pursuant to this article, and the method by which the list of participating providers may be accessed by the employee. "(c) 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 KNIGHT, Bruce 11 1 2 seek the opinion of a third physician in the medical provider network.” (Emphasis added.) 3 California Code of Regulations, title 8, section 9767.12(a) provides in full: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 "An employer or insurer that offers a Medical Provider Network Plan under this article shall notify each covered employee in writing about the use of the Medical Provider Network 30 days prior to the implementation of an approved MPN, at the time of hire, or when an existing employee transfers into the MPN, whichever is appropriate to ensure that the employee has received the initial notification. The notification shall also be sent to a covered employee at the time of injury. The notification(s) shall be written in English and Spanish. The initial written notification shall include the following information: (1) How to contact the person designated by the employer or insurer to be the MPN contact for covered employees. The employer or insurer shall provide a toll free telephone number of the MPN geographical service area includes more than one area code; (2) A description of MPN services; (3) How to review, receive or access the MPN provider directory. Nothing precludes an employer or insurer from initially providing covered employees with a regional area listing of MPN providers in addition to maintaining and making available its complete provider listing in writing. If the provider directory is also accessible on a website, the URL address shall be listed; 18 (4) How to access initial care and subsequent care, and what the access standards are under section 9767.5; 19 (5) How to access treatment if (A) the employee is authorized by the employer to temporarily work or travel for work outside the MPN's geographical service area; (B) a former employee whose employer has ongoing workers' compensation obligations permanently resides outside the MPN geographical service area; and (C) an injured employee decides to temporarily reside outside the MPN geographical service area during recovery; 20 21 22 23 24 25 26 27 (6) How to choose a physician within the MPN; (7) What to do if a covered employee has trouble getting an appointment with a provider within the MPN; (8) How to change a physician within the MPN; (9) How to obtain a referral to a specialist within the MPN or outside the MPN, if needed; KNIGHT, Bruce 12 1 (10) How to use the second and third opinion process; 2 (11) How to request and receive an independent medical review; 3 (12) A description of the standards for transfer of ongoing care into the MPN and a notification that a copy of the policy shall be provided to an employee upon request; and 4 5 6 (13) A description of the continuity of care policy and a notification that a copy of the policy shall be provided to an employee upon request." (Emphasis added.) 7 Therefore, as relevant here, the employer is required to give the injured employee notice of 8 information about use of the MPN, notice of the right to be treated by an MPN physician of choice 9 after the first visit, notice of the method of accessing the list of MPN providers, and notice of the 10 employee’s right to use the second and third opinion process if he or she disputes either the 11 diagnosis or the treatment prescribed by the MPN treating physician. 8 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 II. Failure To Provide Required Notice To An Employee Of Rights Under The MPN That Results In A Neglect Or Refusal To Provide Reasonable Medical Treatment Renders The Employer Or Insurer Liable For Reasonable Medical Treatment Self-Procured By The Employee. Employers have long been obligated to provide notice of workers’ compensation information to their employees as part of the obligation to provide reasonable medical treatment under section 4600. The duty to provide notice of workers' compensation information begins before the report of an injury. An employer is required to provide new employees with written notice of information about the workers' compensation process and about where and how to obtain medical treatment at the time of hire or before the end of the first pay period. (Lab. Code, § 3551; Cal. Code Regs., tit. 8, § 9880.) The employer is also obligated to post conspicuous notice in the workplace of information about the workers’ compensation process and where and how to obtain medical treatment. (Lab. Code, § 3550; Cal. Code Regs., tit. 8, §§ 9881 and 9881.1.) The failure to properly post such notice “shall automatically permit the employee to be treated by his or her personal physician with respect to an injury occurring during that failure.” (Lab. Code, § 3550(e).) 8 Also see section 4616.4(b) regarding the second and third opinion process. KNIGHT, Bruce 13 1 Additional notice obligations are triggered at the time of an industrial injury. Within one 2 working day of receiving notice of injury, the employer must provide the employee with a claim 3 form, information about benefits available to the employee and the workers' compensation process. 4 (Lab. Code, §§5401 through 5402; Cal. Code Regs., tit. 8, §§ 9810 through 9812; see also Lab. 5 Code, §§ 138.3 and 138.4.) The failure to properly provide such notice may toll the statute of 6 limitations. (Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726 [39 Cal.Comp.Cases 7 768]; Buena Ventura Gardens v. Workers' Comp. Appeals Bd. (Novak) (1975) 49 Cal.App.3d 410 8 [40 Cal.Comp.Cases 434].) 9 In the context of the provision of medical treatment, failure to provide other required 10 notices may be a neglect or refusal to provide medical treatment that renders the employer or 11 insurer liable for self-procured medical treatment. For example, failure to provide an injured 12 worker with adequate notice that a designated alternative physician is the primary treating 13 physician pursuant to section 4601 has been held to be such a neglect or refusal because the 14 employee is not properly informed of where and how to obtain medical treatment. (Pinkerton, Inc. 15 v. Workers' Comp. Appeals Bd. (Samuel) (2001) 89 Cal.App.4th 1019 [66 Cal.Comp.Cases 695]; 16 U.S. Flowers v. Workers' Comp. Appeals Bd. (Carranza) (1997) 62 Cal.Comp.Cases 244 (writ 17 denied).) 18 Neglect or refusal to provide medical treatment in other situations has been held to render 19 the employer or insurer liable for the reasonable cost of reasonable medical treatment self- 20 procured by the employee. (Voss, supra; Zeeb, supra; McCoy, supra; Draney, supra; County of L. 21 A. v. Industrial Acc. Com. (Allen) (1936) 13 Cal.App.2d 69 [1 Cal.Comp.Cases 127]; see also 22 Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159 23 [48 Cal.Comp.Cases 566].) 24 We hold that an employer or insurer’s failure to provide required notice to an employee of 25 rights under the MPN that results in a neglect or refusal to provide reasonable medical treatment 26 renders the employer or insurer liable for reasonable medical treatment self-procured by the 27 employee. KNIGHT, Bruce 14 1 2 III. Defendant’s Failure To Provide Applicant With Notice Of His Rights Under The MPN In This Case Resulted In A Neglect Or Refusal To Provide Reasonable Medical Treatment. 3 Defendant contends in its petition that applicant was required to use the MPN because he 4 was provided “appropriate notice” of information. However, as discussed above, a significant part 5 of an employer’s obligation to provide reasonable medical treatment includes the responsibility to 6 notify the injured worker about where and how to obtain that medical treatment. 7 The employee’s right to change physicians within an MPN, and the right to be notified how 8 to change physicians, is analogous to the right of an employee who is not being treated within an 9 MPN to change physicians. 10 employee to change physicians within an MPN – perhaps to a physician the employee trusts, or 11 relates better to, or has better communication with, or in whom he or she has more confidence – is 12 a crucial element of an employee’s treatment rights under an MPN. The Supreme Court has stated 13 that under section 4600, “a doctor-patient relationship which will inspire confidence in the patient 14 is an ingredient aiding in the success of the treatment…” (Zeeb, supra, 67 Cal.2d 496, 502; Voss, 15 supra, 10 Cal.3d 589.) (Lab. Code, § 4601; Lara, supra.) Moreover, the right of an 16 In regard to notice, the burden of proof rests on the party holding the affirmative of the 17 issue. (Lab. Code, § 5705.) In the event of a dispute about whether the injured worker was 18 provided notice of rights under an MPN, the employer carries the burden of proof. In this case, 19 defendant not only failed to carry its burden of proving that it provided notice to applicant of his 20 rights under the MPN, the evidence established that its failure to provide such notice was a neglect 21 or refusal to provide reasonable medical treatment rendering it liable for applicant’s self-procured 22 treatment. 23 Applicant testified that he never received written notice about the MPN from defendant 24 and there is no such written notice in evidence. This is contrary to the requirement that an 25 employee be notified “in writing about the use” of the MPN prior to its implementation and at the 26 time of injury. (Cal. Code Regs., tit. 8, § 9767.12(a).) Moreover, applicant was never notified if 27 treatment had or had not been initiated in the MPN. He was never notified that an MPN physician KNIGHT, Bruce 15 1 had or had not been designated as primary treating physician. He was never provided notice of his 2 right to be treated by an MPN physician of his choice after the first visit as required by section 3 4616.3(b). He was never notified of his right under section 4613(c) to dispute an MPN diagnosis 4 and to obtain second and third opinions. The only evidence of notice regarding the “method” for 5 accessing the list of MPN physicians as required by section 4613(b) are the uncertain and 6 confusing references in the June 14, 2005 letter. Despite the June 6, 2005 letter from applicant’s 7 attorney notifying Liberty that applicant was without medical care, Liberty provided no guidance 8 on how he was supposed to obtain medical treatment. 9 Information about how to access medical treatment, how to choose and change physicians, 10 how to obtain independent medical review, and, thus, how to generally and specifically “use” the 11 MPN, are all crucial to the provision of reasonable medical treatment. In this case, defendant 12 failed to tender reasonable medical care through the MPN and failed to provide required notice to 13 applicant of his rights under the MPN. Instead, defendant informed applicant, Dr. Hunt and Dr. 14 Rabinovich that any medical treatment provided by those physicians would be deemed self- 15 procured and applicant would be financially responsible for their charges. 16 In sum, the record in this case compels the conclusion that defendant neglected and refused 17 to provide reasonable medical treatment by failing to provide applicant with required notice of his 18 rights under the MPN. Because reasonable medical treatment was neglected or refused, applicant 19 is entitled to self-procure reasonable treatment and defendant is liable under section 4600(a) for 20 that treatment. 21 /// 22 /// 23 /// 24 /// 25 /// 26 For the foregoing reasons, 27 KNIGHT, Bruce 16 1 2 IT IS ORDERED as the decision after reconsideration of the Appeals Board (en banc) that the December 9, 2005 Findings and Award is AFFIRMED. 3 WORKERS' COMPENSATION APPEALS BOARD (EN BANC) 4 5 /s/ Joseph M. Miller________________________ JOSEPH M. MILLER, Chairman 6 7 /s/ Merle C. Rabine_________________________ MERLE C. RABINE, Commissioner 8 9 10 /s/ William K. O’Brien______________________ WILLIAM K. O’BRIEN, Commissioner 11 12 /s/ James C. Cuneo_________________________ JAMES C. CUNEO, Commissioner 13 14 /s/ Janice J. Murray_________________________ JANICE JAMISON MURRAY, Commissioner 15 16 17 /s/ Frank M. Brass__________________________ FRANK M. BRASS, Commissioner 18 19 /s/ Ronnie G. Caplane_______________________ RONNIE G. CAPLANE, Commissioner 20 21 22 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 10/10/2006 23 24 25 SERVICE BY MAIL ON SAID DATE TO ALL PARTIES AS SHOWN ON THE OFFICIAL ADDRESS RECORD EXCEPT LIEN CLAIMANTS JFS/ams 26 27 KNIGHT, Bruce 17

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