Kamin: Panel Decision Clarifies Burdens of Proof in MPN Disputes

Monday, June 26, 2023 | 0

An applicant failed to prove that a defendant neglected or refused to provide medical care and must continue treating within the defendant’s medical provider network, according to a new panel decision from the Workers’ Compensation Appeals Board.

John P. Kamin

The WCAB issued a panel decision in the case of Patricia Lazcano v. Lutheran High School Association, which effectively refused to allow applicant to treat outside the defendant’s MPN.

Background

The case featured two specific dates of injury with the back as an accepted body part, the neck as a disputed body part, and other body parts the decision is vague about. The applicant treated with Concentra, then switched to Kaiser because she believed it would provide better care.

Kaiser would treat her for only her low back, so she tried to return to Concentra, but it refused to treat her in lieu of the newer second date of injury.

Applicant, now frustrated, stated that had she known that she could have pre-designated a treating physician, she would have pre-designated her personal family doctor or her personal chiropractor. The defendant notified applicant that her personal chiropractor was not in its MPN network. Applicant then sought treatment with an IPM Medical Group doctor to whom her attorney had referred her.

Trial

The case proceeded to trial. The trial judge found that defendant failed to notify applicant of her right to pre-designate a physician prior to her work injuries; applicant had been denied care within defendant’s MPN; and applicant could treat outside the MPN with IPM Medical Group.

Reconsideration

The defendant filed a petition for reconsideration. On reconsideration, the appeals board ruled that defendant failed to affirmatively prove that it had advised applicant of her right to pre-designate a treating physician before her injuries, as required by law.

However, the commissioners then found that applicant failed to provide any evidence that her personal physicians would have agreed to be pre-designated, which is required by Labor Code 4600(d)(2)(C).

Next, the WCAB determined that applicant failed to prove that the defendant unlawfully refused or neglected to provide medical care. For instance, the commissioners noted that the evidentiary record featured no requests for authorization from either Kaiser or Concentra that were not acted upon. They also noted that there was no evidence of any care that defendant failed to address through utilization review.

Furthermore, there was no other evidence of refusal or neglect to provide care.

With that in mind, the court concluded that applicant did not satisfy her burden to prove that the defendant neglected or refused her medical treatment and that she should be entitled to non-MPN treatment at the employer’s expense.

The board granted the defendant’s petition for reconsideration and stated that the applicant was not entitled to treat outside the MPN.

Takeaways

There are some key takeaways from this panel decision, which are:

• Defendants always want to keep records that applicant was notified of the right to pre-designate a physician. It is defendant’s burden to prove that applicant was notified of this.
• It is the applicant’s burden to prove that the physicians would have accepted a pre-designation to treat her.
• It is also the applicant’s burden to prove that there was a refusal to provide care for an accepted body part, or neglect to provide care for an accepted body part.
• The panel decision said that there was no evidence of any neglect or refusal to provide care. In hindsight, had the defendant failed to submit RFAs to UR or had other denials of care, it could have cost it in this case. However, it did not cost it, thus suggesting that timely handling of RFAs for medical treatment can be very important.

During trials on MPN issues, there can be hundreds if not thousands of documents and sub-issues at play. Amid that blizzard of documents and issues, it can be easy for the parties to get confused over which party carries various burdens of proof. This decision helps clarify who has the burden to prove which issues, and it has plenty of inferences about how one can satisfy the evidentiary burdens.

John P. Kamin is a workers’ compensation defense attorney and equity partner at Bradford & Barthel’s Woodland Hills location. He is WorkCompCentral's former legal editor. This entry from Bradford & Barthel's blog appears with permission.