Here's a question for ya.

Suppose an insurer has a valid medical network (MPN). The MPN met all the notice requirements and technical MPN access standards.In our hypothetical the worker had not, before his work injury, predesignated in writing a doctor to treat in the event he was injured.

Can such a worker escape the MPN by treating with a doctor of his own choice?

Apparently yes. Labor Code 4605 says "Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires."

That's just what was done by the worker in the recent case of Jesse Chavez vs. Brinks, Inc and Liberty Mutual (LBO 389599). In a WCAB panel decision issued April 21, 2008, the WCAB reversed a decision of the workers' comp trial judge that had found the worker was entitled to treatment only through the MPN.

The WCAB panel ordered that "applicant is entitled to medical treatment from defendant, Liberty Mutual Insurance Company, only through the Medical Provider Network."

Bottom line? Chavez could treat with a doctor outside the network, but he'd have to pay for the treatment himself. The case doesn't deal with further ramifications of such treatment. such as whether TD would be due if the non-MPN doctor certified TTD status.

Will this decision open the floodgates for "treatment on a lien"? After all,that practice was a staple of the Wild, Wild West days of comp in the 1990s before the the SB 899 reform.

Not likely.

The decision does not stand for the proposition that Chavez could decline MPN treatment and self-procure treatment on a lien reimburseable by the defendant. After all, Labor Code 4605 refers to "at his own expense".

But if the insurer is not liable for payment, who is liable?

The WCAB panel in Chavez didn't reach this issue. Interestingly, though, in his recommendation in response to applicant's petition for reconsideration, Workers' Compensation Judge Charles C. Ringwalt
raised questions as to whether the applicant would be liable to pay.
Ringwalt cited Labor Code 3751(b) in questioning whether the doctor outside the MPN can collect from the applicant.

Labor Code 3751 (b) says:
"If an employee has filed a claim form pursuant to Section 5401, a provider of medical services shall not, with actual knowledge that a claim is pending, collect money directly from the employee for services to cure or relieve the effects of the injury for which the claim form was filed, unless the medical provider has received written notice that liability for the injury has been rejected by the employer and the medical provider has provided a copy of this notice to the employee. Any medical provider who violates this subdivision shall be liable for three times the amount unlawfully collected, plus reasonable attorney's fees and costs."

Thus, if liability for the injury has been accepted, it would appear the doc can't bill the worker. Could it be that the doctor gets stiffed?

But even if liability for an injury is accepted in a general sense, what if there are disputes about particular treatments (under ACOEM and UR, for example) or disputes about what body parts are involved in the injury? There would seem in such instances to be "non accceptance" of liability for injury, allowing the doctor to bill the worker (or pursue a lien). The panel in Jesse Chavez vs. Brinks didn't deal with these nuances, and further cases may establish the rules on this more definitively.

Many workers will get substitute or parallel treatment from group medical providers (if they have insurance) or public facilities (if they are uninsured).

But self-funding treatment?

Paying for your own treatment isn't a viable financial option for most workers. But for highly paid workers, it might make sense, particularly those workers who are experiencing difficulty with their employers on return to work or reasonable accomodation issues. Still, it's not likely to be a great strategy for boosting PD ratings (since the 4060/4061/4062 process controls).

Stay tuned.

Julius Young
www.boxerlaw.com
(you can subscribe to the blog by clicking on the RSS reader button on the lower right scrollbar under "Most recent entries")

Maybe the Evian, Perrier and San Pellegrino drinkers among us are on to something? Maybe it's not just snobbery, but rather a matter of self preservation.

Blind tastings have shown that tap water often tastes as good as pricey
waters from the Swiss and Italian Alps. But....

Consider the recent reports. An Associated Press investigation reveals
antibiotics, anti-convulsants, mood stabilizers and sex hormones are now found in American water supplies. Check this out:
http://www.insidebayarea.com/oaklandtribune/ci_8519245

The long term significance of this isn't yet scientifically known. Could modern medicine's pill-popping culture eventually be our undoing?
The pharmacy component of workers' comp is huge. I would never begrudge injured workers what they need for pain relief.

But it does make you wonder. Are those workers' comp medications winding up in our drinking water?

Food (or drink) for thought.

I'll be sharing further info on the recent DWC annual conference in my next post. Stay tuned.

Julius Young
http://www.boxerlaw.com/news.html

Lacking lawyers, justice is denied.

That's the title of a major piece by Daniel Costello in yesterday's Los Angeles Times.

Costello examines the effects of the 1975 cap on California medical malpractice awards known as MICRA. MICRA (the Medical Injury Compensation Reform Act) puts a $250,000 limit on awards for non-economic damages (such as pain and suffering, loss of consortium, and so forth).

The $250,000 cap hasn't been adjusted in over 32 years. That's 32 years unadjusted for inflation.

Meanwhile, insurer malpractice insurers are reaping large profits. Costello notes that since 1991 the national average payout of malpractice insurers is 63 cents on the dollar, but in California, it's 39 cents on the dollar.

Voila! Medical malpractice insurers are making profits almost as great as the workers' comp carriers.

Medical malpractice case filings are down significantly. In Los Angeles County, they are down 48% since 2001- to their lowest level per capita in four decades.

An injured worker who is harmed by the medical negligence of a doctor or hospital will often find it hard to locate an attorney to sue the medical provider. The civil jury trial lawyers at Boxer & Gerson do take these kinds of cases, but the cost of handling these cases (expert witnesses, depositions and trial) are often prohibitive unless there are substantial economic damages, such as large future earnings losses.

Among the groups that have a particularly hard time finding attorneys are low wage earners, minorities, and the families of infants and the elderly who die at the hands of medical providers. Rural Californians-who often have limited incomes and who do not have access to top quality care in the first place-are also in that group.

It's unlikely that the Schwarzenegger administration will look favorably on any adjustment to MICRA.

But it will be interesting to see how the presumptive Republican gubernatorial candidate Steve Poizner develops his position on MICRA. At some point, it's hard to keep justifying a three decades-old cap while insurers pocket big profits. Something has to give.

You can find the LA Times article by clicking here:
http://www.latimes.com/business/la-fi-m ... ome-center

Stay tuned. Over the next week, I'll be doing a recap of the key 2007 comp developments and a piece on projections for 2008.

Julius Young
www.boxerlaw.com
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One of my heroes died recently. Evel Knievel. Knievel staged death-defying jumps over impossibly long barricades and into huge river canyons. Part athlete, part showman, part insane man, Knievel was the Harry Houdini I dreamed about as a little kid.

As readers of the column know, my mind works in strange ways.

Today, as I sat pondering Knievel, I came upon the California Workers' Compensation Institute (CWCI) of California workers' compensation medical treatment over the past few years. The study was undertaken by the Oakland-based CWCI at the request of the Oakland-based WCIRB (Workers Compensation Insurance Rating Bureau). Apologies to Gertrude Stein, but there IS a there there in Oakland.

The study shows a steep falloff on some types of workers' comp treatment over the past several years-particularly for chiropractic treatment. The falloff has been steeper than many of Knievel's jumps. The percentage of claims involving chiropractic fell by 68.6% between 2002 and 2006.

There were significant declines in utilization of physical therapy and radiology procedures.

Rather than summarize the study, here's a link so you can see it yourself:
http://www.cwci.org/pdfs/Research_Update1207.pdf

ACOEM and utilization review have shrunk treatment utilization, wringing billions out of the system. But it's also left many workers and physicians frustrated, with a resulting exodus of many doctors from the system.

To see how treatment denials have affected some workers, I'd recommend a visit to this site:
www.denialofcare.org

Stay tuned.

Julius Young
www.boxerlaw.com
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Human behavior is a fascinating thing.

People lining up in the dead of night outside electronics stores for a chance to stampede for teaser deals. Long haul truckers taking philosophy classes downloaded into their iPods off of iTunes. We're all writers and editors now. There's an encyclopedia-Wikipedia.org-that everyone, everywhere is free to create and edit.

We live in an era where you can choose; you can create or you can grab stuff off the shelf.

So it is in comp. too. The California Division of Workers' Compensation has now shifted direction on implementation of post-surgical therapy limits.

Instead of drafting its own regulations, the DWC now intends to use the ODG guidelines on post-surgical therapy treatment.

For background on this, see my October 26, 2007 post "Implementing the Nava Bill":
http://www.workerscompzone.com/index.ph ... 026-102628

This is an issue of great importance for disabled workers who have surgery. The Nava bill (AB 1073) loosened the rigid limitations on therapy in post-surgical cases.

On November 20th, the DWC announced that it was adopting the ODG guidelines that are created by the Work Loss Data Institute. Those proposed guidelines are now available for public comment:
http://www.dir.ca.gov/dwc/ForumDocs/Pos ... ations.pdf

As of today there has been only one public comment. It's hard to believe, but during many "forums" on DWC's regulations there have been very few members of the public commenting. It would appear that injured workers and members of of the "comp community" aren't paying all that much attention to the regulatory process.

After the public comment period, these guidelines will go through the formal rulemaking process. Stay tuned.

You can subscribe to the blog by using the RSS buttons at the lower right hand menu bar.

Julius Young
http://www.boxerlaw.com/verdicts.html
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