WCAB to Reconsider Controversial Decision

By Zachary H. Sacks

Sacks & Zolonz

In workers' compensation defense news, the California Workers' Compensation Appeals Board recently announced that it was planning to reconsider a previous and controversial ruling concerning whether a report from a physician outside of a medical provider network (MPN) can be used to establish eligibility for work comp benefits.

The decision being revisited was handed down by the Appeals Board back in April and concerned Elayne V., a Costco employee from Southern California who was injured on the job.

Specifically, Elayne V. had been receiving treatment for her work-related injuries via her MPN, but did not believe she was making adequate progress in her recovery. She therefore sought treatment from a physician outside of her MPN. However, she did so without securing prior approval from her provider or without informing them of her actions.

Elayne V. eventually used a report from this outside physician to secure four months of temporary disability, a move approved by an administrative law judge (ALJ).

However, the Appeals Board viewed things differently, ruling unanimously in favor of Elayne V.'s work comp provider, who had challenged the decision of the ALJ.

According to the Appeals Board, the provisions governing MPNs in the state of California dictate that injured workers are required to see MPN physicians (if the work comp insurer does indeed have an MPN) and that these same provisions also permit the injured employee to see upwards of two MPN physicians if they are unsatisfied with their medical care.

Here, the Appeals Board ruled that Elayne V. did not follow these protocols governing MPNs (seeing only one network physician). Consequently, her report from a non-MPN physician was ruled inadmissible.

Interestingly, the Appeals Board did not explain why it is choosing to revisit this decision, saying only that it granted a motion for reconsideration by Elayne V.'s attorneys.

It must be noted, however, that critics of the decision have voiced frustration, indicating that it is perhaps overly inclusive and fails to account for otherwise unique/urgent situations.

Stay tuned for further developments in the area of workers' compensation defense law ...

This post was provided for informational purposes only and is not to be construed as legal or medical advice. Names have been withheld to protect the identity of the parties.