Injured Workers, Second Opinions & MPNs

Sunday, January 2, 2005 | 0

Recently, someone whose intellect, intelligence, and knowledge of the law I highly respect, and who, unbeknownst to him, I consider to be my mentor, put a bee in my bonnet. He asked me my thoughts regarding a situation we will certainly be seeing commonly starting in 2005.

The question posed was as follows: If an injured worker (IW) is in a medical provider network (MPN), and the IW is displeased with the treatment or diagnosis of the MPN primary treating physician (PTP), can the IW go the panel qualified medical examiner (PQME) route, or is the IW forced to seek a second and third MPN physician opinion, and only go to an IMR physician thereafter?

My initial analytic answer was for the IW to seek a second and third opinion from physicians within the MPN, and then the only other recourse would be to seek an IMR from the AD.

Upon further reflection, and extensive cogitation, I have now come to a different conclusion. Together, let's examine the following hypothetical situation, examine the applicable law, and answer the question posed:

1. An IW sustains an admitted industrial injury post 1/1/05;
2. The Employer (ER) has an MPN;
3. The IW has received treatment from a MPN PTP; and,
4. The IW is either displeased with a quick P&S determination, or the EE/IW is aggrieved by a low PD determination made by the MPN PTP in a P&S report.
5. QUESTION: Does the IW have to go the IMR route, or can the IW trigger the PQME process as an objecting party?

Let's look at the applicable Labor Codes that address this type of situation:

LC 4616.3(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 seek the opinion of a third physician in the medical provider network." (Emphasis added by author.)

LC 4616.4(c): "If, after the third physician's opinion, the treatment or diagnostic service remains disputed, the injured employee may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physician's opinion in accordance with Section 4616.3. The standard to be utilized for independent medical review is identical to that contained in the medical treatment utilization schedule established in Section 5307.27, or the American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines, as appropriate." (Emphasis added by author.)

If the legislators had added the word "only" after the word "may" then the legislative intent would be crystal-clear that an injured employee may only seek the opinion of another physician in the MPN (LC 4616.3(c)), and may only request IMR regarding the disputed treatment of diagnostic service (LC 4616.4(c)).

OPERATIVE DEFINITIONS

As we have seen from the recent en banc decision in Sandhagen, the WCAB has clearly delineated the differences between the words "may" and "shall" as follows:

"It is a principle of statutory construction that the word "shall," as used in the Labor Code, ordinarily connotes a mandatory duty. (Lab. Code, section 15 [" '[s]hall' is mandatory and 'may' is permissive"]; see also, Smith v. Rae-Venter Law Group (2003) 29 Cal.4th 345, 357; Jones v. Tracy School Dist. (1980) 27 Cal.3d 99, 109; Morris v. County of Marin (1977) 18 Cal.3d 901, 907.) The word "must" is also normally mandatory. (Long Beach Police Officers Assn. v. City of Long Beach (1988) 46 Cal.3d 736, 743; In re Angela M. (2003) 111 Cal.App.4th 1392, 1398, fn. 4; Larson v. State Personnel Bd. (1994) 28 Cal.App.4th 265, 276; see also, Cal. Rules of Court, Rule 200.2(4) ["The words 'must' and 'shall' are mandatory and the word 'may' is permissive."]; Rule 1401(b)(1) [" 'Shall' and 'must' are mandatory and 'may' is permissive."].) Similarly, the word "require" means "to direct, order, demand, instruct, command, ... [and] compel." (In re Barfoot (1998) 61 Cal.App.4th 923, 931 [quoting from Black's Law Dict. (6th ed. 1990), at p. 1304.)"

Thus, it is clear that the principle of statutory construction mandates that the use of the word "may" is permissive, not mandatory. Accordingly, the IW "may seek the opinion of another physician in the medical provider network," but the IW is not mandated to seek a second or third opinion from within the MPN. (See LC 4616.3(c).)

The IW "may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physician's opinion in accordance with Section 4616.3," but the IW is not mandated to request independent medical review. (See LC 4616.4(c).)

DOES LC 4616.6 BAR A PQME?

Turning now to LC 4616.6, we are confronted with still another facet of our Legislature's enactment of the MPN concept. LC 4616.6 reads as follows:

"No additional examinations shall be ordered by the appeals board and no other reports shall be admissable (sic) to resolve any controversy arising out of this article. Leg.H. 2004 ch. 34 (SB 899), effective April 19, 2004."

At first blush, LC 4616.6 appears to bar the IW from going the PQME route and mandates an IMR to resolve the dispute. However, once again our legislators have provided the regulated public with confusing language that will surely end up being resolved only through litigation ----- and the confusion hinges on a simple comma, or more precisely, the lack of one.

It is clear that, "no additional examinations shall be ordered by the appeals board" but does the remainder of this sentence, ("and no other reports shall be admissible to resolve any controversy arising out of this article") only apply to a report generated as a result of prohibited "additional examinations ordered by the appeals board" or does it also apply to a PQME report, which was not "ordered by the appeals board" but instead requested by the IW?

In my opinion, a short refresher from a grammar teacher (not to mention a spelling teacher) is needed to fully provide the answer to this question. LC 4616.6 contains two distinct independent clauses ("No additional examinations shall be ordered by the appeals board" ----- "no other reports shall be admissible to resolve any controversy arising out of this article."), joined with a coordinating conjunction (and).

In order to avoid confusion, the Legislature should have done either of the following:
1. Added a coma before the word "and" in LC 4616.6, or
2. Made LC 4616.6 two distinct sentences.

As a result of the legislators failure to do either of the above, it will probably take an appellate decision to resolve the vagueness, uncertainty, and confusion created by the specific wording and grammar found in LC 4616.6.

As an example of how a single comma can make a world of difference, let's look at the following sentence and see if we can determine the world of difference a single comma makes:

"I knew President Nixon would resign that morning, because my sister-in-law worked in the White House and she called me with the news."

Without that comma, the sentence says Nixon's resignation was the fault of my sister-in-law!!!

Although I am certainly less than perfect with my own writing style (I tend to use way too many commas), when it comes to the law, and its interpretation, a comma can make a world of difference.

APPLICABILITY OF LC 4602, 4062.1, and/or 4062.2

Initially, let's look at the pertinent language found in LC 4062(a): "If either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues not covered by Section 4060 or 4061 and not subject to Section 4610, 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 or within 30 days of receipt of the report if the employee is not represented by an attorney." (Emphasis added by author.)

Plainly, if "the employee" "objects to a medical determination by the treating physician concerning any medical issues not covered by Section 4060 or 4061 and not subject to Section 4610" that the IW is P&S, with or without PD, then upon receipt of the P&S report, the IW, as the "objecting party" has an obligation to notify the employer/insurer in writing, within delineated time-frames.

The operative phrase in LC 4062(a) is "not covered by Section 4060 or 4061 and not subject to Section 4610." Let's examine each, in turn.

LC 4060(a), by its own definition, would be inapplicable to an accepted injury claim: "This section shall apply to disputes over the compensability of any injury. This section shall not apply where injury to any part or parts of the body is accepted as compensable by the employer." (Emphasis added by author.) Being as this hypothetical IW sustained an admitted injury, LC 4060 is inapplicable.

Next, LC 4061(a)(1) states: "Notice either that no permanent disability indemnity will be paid because the employer alleges the employee has no permanent impairment or limitations resulting from the injury or notice of the amount of permanent disability indemnity determined by the employer to be payable. The notice shall include information concerning how the employee may obtain a formal medical evaluation pursuant to subdivision (c) or (d) if he or she disagrees with the position taken by the employer. The notice shall be accompanied by the form prescribed by the administrative director for requesting assignment of a panel of qualified medical evaluators, unless the employee is represented by an attorney. If the employer determines permanent disability indemnity is payable, the employer shall advise the employee of the amount determined payable and the basis on which the determination was made and whether there is need for continuing medical care." (Emphasis added by author.)

As we can see, LC 4061(a)(1) directs us first to LC 4061(c), which states: "If the parties do not agree to a permanent disability rating based on the treating physician's evaluation, and the employee is represented by an attorney, a medical evaluation to determine permanent disability shall be obtained as provided in Section 4062.2." (Emphasis added by author.) Accordingly, if the IW aggrieved by a P&S report is represented, LC 4061(c) directs the IW to trigger the PQME process as outlined in LC 4062.2.

If the IW is not represented, LC 4061(a) directs the unrepresented IW to LC 4061(d), which states: "If the parties do not agree to a permanent disability rating based on the treating physician's evaluation, and if the employee is not represented by an attorney, the employer shall immediately provide the employee with a form prescribed by the medical director with which to request assignment of a panel of three qualified medical evaluators. Either party may request a comprehensive medical evaluation to determine permanent disability, and the evaluation shall be obtained only by the procedure provided in Section 4062.1." (Emphasis added by author.) Thus, the unrepresented IW, aggrieved by a P&S report, is directed to seek a PQME pursuant to LC 4062.1.

CONCLUSION ON THE APPLICABILITY OF LC 4602, 4062.1, and/or 4062.2

Obviously, regardless of whether this hypothetical IW is disputing PD, or is simply insisting that further treatment is necessary before being declared P&S and Released As Cured (RAC), LC 4061 mandates the aggrieved IW must avail himself of the 4062.1 (unrepresented) or 4062.2 (represented) PQME process.

Being as the MPN PTP has not sought authorization for further treatment, but instead considers the IW to be P&S, LC 4610 (Utilization Review) is also inapplicable.

Clearly then, pursuant to LC 4062(a), if the IW, who is in an MPN, is aggrieved by a P&S report, LC 4060, LC 4061, and LC 4610 are inapplicable.

Accordingly, the unrepresented IW can trigger the PQME process through LC 4062(a), which would trigger a PQME through the process found in LC 4062.1(b). The represented IW can trigger the PQME process through LC 4062.2(b). Accordingly, the IW may choose to go the IMR route, but the IW is not mandated to go the IMR route. The IW can choose to initiate the PQME process, and can ignore the IMR route with impunity.

IMR vs. PQME - ADVANTAGES OF PQME PANELS

In short, the PQME panels can only contain the names of QMEs who are not affiliated with the employer, the insurer, the MPN, or UR. For obvious conflict-of-interest reasons, the PQME must be impartial, neutral, and detached. The PQME panels can consist of any type of physician defined in LC 3209.3(a), which includes chiropractors, but the definition of an IMR physician is strictly limited to being an MD or a DO, ("licensed pursuant to Chapter 5 (commencing with Section 2000) of the Business and Professions Code") which excludes chiropractors. (See LC 4616.4(a)(2).)

LC 4616.4 vs. CCR 9767.7(g)

We already know that LC 4616.4 indicates the IW "may request independent medical review regarding the disputed treatment or diagnostic service still in dispute after the third physician's opinion in accordance with Section 4616.3." (Emphasis added by author.)

CCR 9767.7(g) reads as follows: "If the injured covered employee disagrees with the diagnosis or treatment of the third opinion physician, the injured employee may file with the Administrative Director a request for an Independent Medical Review pursuant to section 9768 et seq." (Emphasis added by author.)

Accordingly, the Regulation closely tracks the Statute. Again, because our AD did not state that the injured employee may only request IMR, it appears as though the IW has the choice as to whether to request IMR, or a PQME.

THOUGHTS AND CONCLUSIONS In conclusion, an aggrieved IW who is displeased with a quick P&S, or a low PD determination, by the MPN PTP "may seek the opinion of a third physician in the medical provider network." but is not required to seek a second or third opinion from within the MPN. (See LC 4616.3(c).)

Further, the aggrieved IW "may request independent medical review" but is not required or limited, to only seeking redress from an IMR selected by the AD. (See LC 4616.4(c).)

The aggrieved IW in an MPN can trigger the PQME process, which includes any physician (chiropractors) defined in LC 3209.3(a) (See LC 139.2(b).), instead of being limited to only seeking an IMR from the AD, which excludes chiropractors. (See LC 4616.4(a)(2).)

The IW can choose to go the PQME route to resolve the dispute, and the IW cannot be forced to submit to IMR to resolve the dispute, unless the appellate courts make a finding that despite the inaccurate drafting of LC 4616.6, an IW must go the IMR route.

It sure looks to me as though those 'applicant friendly' QMEs (an MD, a DO, or a chiropractor) will indeed be allowed to resolve a dispute between the aggrieved IW and the MPN PTP regarding a quick P&S that determines the IW can be RAC, or a low level of PD as determined by the MPN PTP.

Considering that the recent elections resulted in no change in the democratic or republican balance in the Assembly, and only one Senate seat was gained by the republicans, the democrats still control both legislative houses. Being as none of the legislators want to hear any mention of further workers' compensation reform, and this analysis is based solely on the statutory Labor Codes, I do not foresee any further additional 'clean-up' legislation in the near future to mandate that IMR is the only recourse for an IW in an MPN who is aggrieved by a quick P&S, or a low level of PD.

My initial analytic answer as to whether an IW can be forced to resolve a dispute only by going the IMR route was incorrect, and I owe a deep heartfelt thanks to this specific mentor who put this particular IMR/PQME bee in my bonnet.

by York McGavin. York can be contacted at ymcgavin@socal.rr.com.

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