Employer Controlled Medical Treatment

Saturday, July 29, 2006 | 0

The following is an excerpt from the recently published treatise on the two-year anniversary of SB 899 by attorney Michael Sullivan. The full document can be downloaded here.

Employer control of medical treatment was one of the most hotly contested and most dramatic changes of this reform legislation. In the past, the applicant's ability to control medical treatment thirty days after injury was a key problem for the defense, especially in combination with the treating doctor's presumption that existed for so long. An entire treatment industry developed, with well-known applicant's physicians consistently exaggerating the need for treatment, adding body parts, maximizing claims for permanent disability and - it cannot be denied - getting rich. The applicant's control had existed since 1976.

To a large and growing extent, all of that has changed. SB 899, in one of its most dramatic changes, set up the network system. To put it simply, as of January 1, 2005, if the defense has a network of physicians in place, it retains complete medical control throughout the lifetime of any claim for injury on any date. Combined with utilization review, this has changed the landscape of treating work related injuries in California.

It is Labor Code Section 4600 that first references the discussion of an employer network. Labor Code Section 4600 used to provide for the applicant's ability to select a physician of his or her own choice at a facility of his or her own choice, 30 days after the date the injury was reported. This is now conditioned on the factor of whether the "employer or the employer's insurer" has established a medical provider network (MPN), as provided for in Labor Code Section 4616. Where such a network is established, the choice is limited to those physicians that exist inside the network.

It should also be noted that the legislature and the Administrative Director have been careful to protect the injured workers' access to quality of care. Various standards have been set on these points as described herein. It is provided that the employer may allow the applicant to treat outside the network when it so chooses. There is even one provision, Labor Code Section 46163(d)(2) (backed up by Regulation Section 9767.5) that allows for treatment by a specialist outside of the network "on a case by case basis" where one is not available within the network.

A. Establishing the Network System

Labor Code Section 4616 indicates that on or after January 1, 2005, a MPN may be set up by an "insurer or employer." The statutory scheme encompasses Labor Code Section 4616 through 4616.7. After SB 899 passed, there was a tremendous response to this opportunity. Various networks were created and marketed in a very expeditious fashion. At this writing, virtually every insurance carrier and self-insured entity has a network in place, and is continuously working to implement it. Eventually, it seems that almost all cases in the state will be treated within the network.

The Administrative Director was asked to provide Regulations pertaining to networks, and after several drafts, we finally got a permanent set in September of 2005. The Regulations pertaining to networks are numbered Sub Section 9767.1 through 9767.15.

The Networks Established

Traditional HMOs and PPOs scrambled to have their organizations identified as a network. Independent networks have also been formed. In some cases the larger networks have turned out to be not much of a threat to applicant attorneys. It is not uncommon for some of the most infamous applicant-oriented physicians to be - at least initially - on a given network panel. Beyond that, many applicant attorneys have found that they are able to find doctors suitable to them on the panel list. These panels are being circumscribed a little at a time after their original formation.

It is certainly true that the network system is not having the extreme chilling effect on litigation that was anticipated at the start of this process. It is surprising to see that many physicians operate with a comfortable and unexpected level of autonomy - at least within the confines of utilization review. Employers by no means have the anticipated level of consistent defense orientation or the responsiveness to defense pressure that was so greatly feared before this process began.

Before the networks, applicant's attorneys sometimes had felt that they had little control over the perceived abuse of medical care in their caseloads. They often see more efficient care and quicker turnaround as a boon to their business of law. They have also found clever ways of avoiding the network, as described further below. All in all, networks have had and do have a growing positive effect for the defense. However, they have not broken the litigation system, nor have they met the initial expectations of the defense.

Network Standards

Why has a system, once so feared, been so diffused in practice? One answer is the stringent demands placed upon the defense when constructing a network. These demands have the effect of forcing the defense into allowing a huge numbers of providers into the network, thus limiting its control. The legislature in Labor Code Sub Section 4616 and 4616.1 had provided specific standards to make sure that the care provided by networks was adequate. Subsequently, Regulations were passed which accentuated these demands. These are CCR Sub Section 9767.2 through 9767.5.

The Administrative Director is required to approve all prospective MPNs. There is a required written application, which is quite lengthy and detailed. If it is not denied within sixty (60) days it is deemed approved. It requires a complete exposition of compliance with outlined standards.

Here are the factors involved:

1) The Labor Code provides that the network is to include "physicians primarily engaged in the treatment of occupational injuries and physicians primarily engaged in the treatment of non-occupational injuries. The goal shall be at least 25% of physicians primarily engaged in the treatment of non-occupational injuries." The Administrative Director in Regulation Section 9767.3 (e)(9) has obligated confirmation of this standard in any application submitted.

2) It is important that the network be able to provide whatever treatment is necessary. Labor Code Section 4616(a) indicates that the number of physicians in the MPN shall be sufficient to enable treatment for injuries or conditions to be provided in a timely manner. Only licensed physicians and those competent to evaluate the specific clinical issues involved in the treatment services are allowed to practice. There is also to be an adequate number and types of physicians "to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and the geographic area where the employees are employed." Regulation Section 9767.5 sets forth access standards. It is required that specialists, emergency care, and occupational care be available within given distances from the applicant's work or residence. Appointments are to be available within three days of request, and specialist appointments are to be available within twenty days. Regulation Section 9767.5(h) specifically allows an injured worker to see a specialist outside the network if that type of specialist is not available within the network.

3) Section 4616(a)(2) indicates that medical treatment for injuries is to be readily available for reasonable times to all employees. It also allows for the relaxation of standards in certain rural areas. Also required is a written policy for medical care when an employee resides or is authorized by the employer to work outside the coverage area.

4) The Administrative Director is not allowed to withhold approval based solely on the selection of providers. It is specified that the employer or insurer have the exclusive right to determine the members of the network. On the other hand, physician compensation may not be structured in order to achieve the goal of reducing, delaying or denying medical treatment or restricting access to medical treatment. Regulation Section 9767.3 demands written confirmation of that.

5) Labor Code Section 4616.1. talks about the use of "economic profiling." This is the process of evaluating a particular physician or provider medical group or individual practice association, based on whole or in part on the economic cost of utilization and services associated with the medical care provided. If such profiling is utilized, the Administrative Director must be provided with a copy of the filing, and it must be available for public view as well.

6) Health care organizations and health care service plans, and even group disability insurance policies are deemed approved provided certain conditions are met as determined by the Administrative Director. This may allow them to circumvent the approval process to some extent. The specifics of this are outlined by Labor Code Section 4616.7.

Network Modification

Regulation Section 9767.8 deals with the process of modifying an existing MPN. Where such a modification is required, the defense is to submit a written application to the Administrative Director. This is to be denied or accepted within sixty days and there are to be no changes until there is approval. A failure to respond is deemed an approval. There are also provisions for reconsideration and even appeal.

This process is only required for important or "material" changes. The Regulation gives specific examples of what this means. Most interesting is the requirement that approval be sought if there is either a change of 10% or more in the physicians on the MPN panel, or a 25% or more change in the employees covered. Obviously, with time, both of those things will occur in any MPN. There is no qualification as to these changes taking place within any confined period of time, which means that each MPN will have to seek approval of modification intermittently, and in perpetuity.

This pertains directly to the problem of undesired doctors being left on the panel. If there is a change of less than ten percent of these, no approval need be sought, at least not immediately. Depending on the contracts with the physicians themselves, this seems to give the defense some room to maneuver.

Regulation Section 9767.13 allows the Administrative Director to deny approval of application for an MPN and provides that the reasons for disapproval are to be stated in writing. The Administrative Director is also empowered under Regulation Section 9767.14 to suspend or revoke a MPN. In both of those instances, a request for re evaluation can be made and an appeals process is provided.

Some MPNs were created under emergency regulations before the permanent regulations went into effect. Regulation Section 9767.15 provides that in many instances there is no requirement that a MPN submit a notice of plan modification.

Practical Problems

In managing MPNs, issues have arisen as to providers that want into the network, and providers that do not want to be there anymore. It has been pointed out that in Popvin v. Metropolitan Life Insurance Company (2000) 22 Cal. 4th 160, the California Supreme Court had upheld the right of the provider to a fair notice and a hearing prior to removal from the list of preferred provider status. This did not involve a workers' compensation case, but was analogous.

However, in the case of Palm Medical Group v. State Compensation Insurance Fund, Case # CGC 03-421984, it was recently held that a provider had no cause of action when they were not allowed on the panel. At one point A $1 million jury verdict was reversed.

A legally defensible fair hearing process and credentialing system is recommended. Since an MPN can be suspended or revoked if one of the providers is found not to be properly credentialed, it is important to keep tabs on the entire MPN as time goes on.

There have been a number of day to day problems that have been occurring as this incredibly complex and huge system is implemented. In many instances the panels of physicians are not well considered. Many MPNs were created by converting an existing PPO. This was convenient as the contracts were already in place, but also often resulted in panels that included physicians undesirable to the defense. Doctors may discover their membership in a panel with unhappy surprise - they may have no idea of how the system works or how to write reports. Sometimes doctors cannot schedule appointments in a timely fashion, are no longer located in the indicated geographical area designated, or are deceased. All of these sorts of things have happened.

Hopefully these sorts of problems will be cleared up as time goes on. In the meantime, applicant's attorneys would do well to document the situation and move for an expedited hearing if it is not addressed immediately. The defense would do well to have a mechanism in place for quick and efficient adjustment of the MPN panels in order to avoid being charged with outright misrepresentations regarding the available physicians on the MPN.

B. Implementing the Network

The establishment of a treating network enables the employer or insurer to control medical care for all dates of injury, whether before or after the establishment of the network. Therefore, following the timely establishment of such a network, those injuries in the process of treatment can be transferred into the network. There are few applicant attorneys left who still try to argue that treatment within the network is only required for dates of injury in 2005 or later.

Initial Provision of Treatment

When a network is in place, the employer simply provides treatment by referring the applicant to a doctor within the network. This is explained in Labor Code Section 4616.3 and Regulation Section 9767.6. It is the obligation of the defense to schedule the initial appointment with the network physician. All necessary care is to be provided as per Labor Code Section 4600, which explains the variety of treatment possibilities available to cure and relieve injury.

In this scenario, the applicant is to be notified of his or her right to be treated by a physician within the network, and of the method of finding alternative physicians, "after the first visit with the MPN physician". There is more on notice requirements below, but note that there is no specific time limit for this required notice.

The law at this stage seems to provide that the obligation to provide medical care is triggered by the filing of a claim form (as discussed below). Regardless, it is not completely unheard of for an employer to ignore notice of injury or attempt to circumvent the claims process. Applicant attorneys will certainly argue that a failure to provide such care in a timely manner will result in a loss of medical control and the right of an applicant to treat outside the network.

The new Labor Code Section 5402(c) specifies that within one working day after the employee files a claim form, the employer must authorize the provision of all treatment. Such a position is supported by the Regulation Section 9767.6(b),which pertains to network issues. That provides for provision of medical care within one working day "after an employee files a claim form under Labor Code Section 5401". On the other hand, the Regulation immediately preceding that, Section 9767.6(a), requires the arrangement of a medical evaluation with an MPN physician "When the injured covered employee notifies the employer or insured employer of the injury or files a claim for workers' compensation". So under that version, notification could be enough. It is likely, and it should be the position of the defense, that the presentation of a claim form by the employee will be necessary in every case to trigger the obligation to provide medical care. However, there is an argument that under the Regulations as written, there is an obligation to provide care sooner if the employer has a network in place.

Along these lines, the Honeywell case (previously discussed) could become very important. There it was held that the ninety days for denial of claims under Labor Code Section 5402 ran not from the date of notice, but from service of the claim form filed by the employee. Of course, there is no debate that under Labor Code Section 5401, the employer is obligated to present a claim form to the employee upon notice of injury. Honeywell was careful to comment that under some circumstances of deceitful and egregious behavior by the employer, notice would be sufficient. The standards of this case may very well be found to apply to the obligation to provide medical care.

A failure to tender care may very well mean that the defense loses medical control. Labor Code Section 4600(a) states that the defense is liable for the expense of medical care if it is not provided due to "neglect or refusal". The case law under the pre-SB 899 was not tolerant of refusal to provide care. These cases made it clear that refusal meant losing medical control. The cases on this are Zeeb v. WCAB (1967) 32 CCC 441 and SCIF v. WCAB (Silva) (1977) 42 CCC 493. These cases will be important precedent when applicants try to treat outside the network in these sorts of situations.

If medical control is lost due to failure to provide medical care, can it be reasserted by the defense? There is no certain answer. The Zeeb case cited above had the Supreme Court considering just this sort of issue; it ultimately held that the most vital interest in this sort of situation was to allow the applicant to continue within an established treating relationship. Such reasoning may be more questionable in the present environment, where the legislature obviously desired employer control, arguably as a result of the questionable care applicants had been receiving on their own.

It is certain that a continued refusal to provide medical care will entitle the applicant to treat elsewhere. Labor Code Section 4600(a) specifies this. If a case is denied, then reasonable treatment outside the MPN will be justified if the issue of industrial injury is ultimately found in favor of the applicant. Denial thus becomes an even more serious decision for the adjuster, especially in the case where it is perceived that there may not be much permanent disability under the new schedule.

Changing Treating Physicians

The applicant may change primary treating physicians within the network. Regulation Section 9767.6 allows this to happen freely, stating that at any point after the evaluation with the treating physician, "the covered employee may select a physician of his or her choice from within the MPN." Regulation Section 9785 (b)(2) (at this writing still only a proposed Regulation) states that the applicant can only have one primary treating physician at a time, but that he or she can designate a new one at will, as long as there is still some need for medical care. Note that this does not explicitly limit the applicant to just one change; the only limitation is that the new physician be within the network, and that the change be made to a physician with the "specialty or recognized expertise" pertinent to the injury in question.

How many times can an applicant switch treating physicians? If there is no limit on this, it could wreak havoc when it comes to employer control. The applicant, if he or she is not getting their way, can simply switch doctors. As described below, there is a step by step process for resolving disputes over treatment written into the Labor Code. However, this hardly seems like it will be well used, as the applicant's better option may be just to change the treating doctor.

To add insult to injury, Regulation Section 9767.6(f) specifies that the defense cannot make a request to change physicians. This is a serious departure from the prior system, and obviously leaves the defense in a very difficult position if a change is needed due to cause. Given the breadth of the panels in their current state, it may very well end up being the applicant who is in control in many cases. Note that this flies in the face of Labor Code Section 4603, which allows the defense to petition for a change of primary treating physician directly with the Administrative Director. Only good cause must be shown. Also, Regulation Section 9786 remains in place, outlining the procedures by which such a Petition is lodged. Certainly, the Labor Code trumps a Regulation, but the argument will be made that Regulation Section 9767.6(f) pertains solely to where a network is in place, and is therefore allowable in those cases.

One of the distinctive features of SB 899 is that it left Labor Code Section 4601 intact. As discussed under the topic of pre-designated physicians, this has led to trouble in more than one area. It declares that the applicant has the right to request a change in primary treating physician, and within five working days, the defense must tender the change. This troublesome section goes on to declare that the applicant has the right "in any serious case" to the services of a consulting physician, chiropractor, or acupuncturist. The defense will take the reasonable position that these must be within the network.

Applicant's attorneys may try one tactic here. They may request a change of treating physician, and when there is no timely response, demand treatment with a physician of choice outside the network. This seems incongruous with the applicant's right under Regulation Section 9767.6 to simply choose a new physician within the network at will. The defense will argue that there is a standing response to any such request, given notification to the applicant of various physicians to choose from at the beginning of the process. The defense will also argue that Labor Code Section 4601 does not apply where a network is in place. Note that Regulation Section 9781 is enacted in regards to pre-designation under Labor Code Section 4601. It specifies that it only applies where there is no network in place. The defense will look to this for support on the point.

Labor Code Section 4601 is complimentary to Labor Code Section 4600. The definitive case on the issue before SB 899 was passed was Ralph's Grocery Company v. WCAB (Lara) (1995) 60 CCC 840. This case was decided by the Court of Appeals, and confirmed the holdings of three prior writ denied cases; these had upheld, subject to reasonableness, the right of the applicant to switch treating physicians more than once. (This case provides an excellent exposition of the history of Labor Code Sub Section 4600 and 4601.) Significantly, this right was said to be found in the provisions of Labor Code Section 4600, not just in 4601, which means that the applicant did not need to make a demand and await a tendering of a new physician name. The switch could simply be announced. Section 4600 has changed, and there is no right to choose a treating physician outside the network, where a network exists. However, there is no reason to think that Section 4601 does not still apply. The applicant will likely be found allowed to change physicians at will, and it is not hard to envision serious abuse of this principle.

A close reading of Lara confirms that the defense may be in trouble here. The Court suggested that if the right to change physicians was abused, the defense should simply avail itself of the remedies available at law. Since the defense can no longer request its own change of physician, these remedies are considerably narrowed. The Lara Court then went on to say that ". . . if there is widespread abuse by employees exercising their right to choose a physician, it is a matter that can be brought to the attention of the legislature."

There are other issues here. Labor Code Section 4601 specifies that if an applicant requests a change of treating physician the defense is to tender a new name within five days. To some extent this is fine, as a name of a physician in the network may be tendered. However, such a quick response time can be hard to live up to on a daily basis. The specter is raised; will a failure to tender under Section 4601 in a timely fashion result in a loss of medical control?

There are a lot of cases which stand for the proposition that a failure to tender a new physician within five days when requested under Labor Code Section 4601 does result in a loss of medical control. In U.S. Flowers v. WCAB (Carranza) (1997) 62 CCC 244 the Court found against the defense and imposed the cost of medical treatment of the applicant's physician where the defense did not respond to a change of primary treating physician. In Pinkerton v. WCAB (Samuel) (2001) 66 CCC 695 the response to the applicant's change of treating physician was not sufficient and control was lost. The principle that medical control is lost upon failure to respond to a request of physician is affirmed in Hunt-Wesson Foods v. WCAB (Ortiz) (1997) 63 CCC 85.

However, this case arose under a different statutory scheme altogether. While Labor Code Section 4601 was not changed, the legislative intent of SB 899 seems to be that treatment be confined to the network. Accordingly, it is not clear that a failure to tender care following a request under Labor Code Section 4601 will result in the ability of an applicant to treat outside the network. It is good practice to tender care in order to avoid this risk.

Proposed (at this writing), Regulation Section 9785(b)(3) makes an attempt to deal with this to some extent. It provides that "If the employee disputes a medical determination made by the primary treating physician . . . the dispute shall be resolved under the applicable procedures set forth at Labor Code Sub Section 4061 and 4062. No other primary treating physician shall be designated by the employee until and unless the dispute is resolved." So there needs to be resolution of a dispute over treatment before the applicant can change primary treating physicians. This has long been the effect of this Regulation - rendering the applicant unable to select a new treating physician after P&S status, provided there is no future medical care warranted. There is an issue as to whether this applies where a network is in place, as discussed further below in our section on treatment and dispute resolution.

Chiropractors and Acupuncturists

Labor Code Section 4601(a) still provides that the applicant is entitled to receive treatment from a chiropractor or acupuncturist in any "serious case". That really is disastrous choice of words by the legislature. Also, Labor Code Section 4600(a) allows that the applicant is entitled to acupuncture or chiropractic treatment as reasonably necessary. Chiropractors and acupuncturists have traditionally been considered physicians in accordance with Labor Code Section 3209.3(a), and have been allowed to serve as primary treating physicians in accordance with Regulation Section 9785.

We have already seen that a chiropractor or acupuncturist cannot be pre-designated under Labor Code Section 4600(d). This is only an issue of entitlement to treat outside the network by way of pre-designation. It seems that the applicant's general entitlement to treat with a chiropractor or acupuncturist within the network is preserved. Therefore, the networks need to have chiropractor and acupuncturist care available to applicants. In an advisory letter issued November 9, 2005, the DWC made it clear that it expected these to be on the panel.

Of course, treatment of this type is limited, no matter who the primary treating physician is. The 2003 legislation specified that an employee would be limited to no more that 24 chiropractic and 24 physical therapy visits per industrial injury. SB 899 similarly provides that an employee is entitled to no more that 24 occupational therapy visits per industrial injury. That language does not seem to solve many of the potential problems with the original statute. This is a modification of Labor Code Section 4604.5(d).

There is a modification here to Labor Code Section 4604.5(f). It is clarified to show that the defense can allow limited visits beyond the 24 allowed, and still allow for no further visits after that. That was a concern that has now been "cleaned up".

Notice Requirements

When a network is created, notice to employees is required. Those employees who are fine, but will be subject to the network should they become injured, must be notified. The defense may also transfer currently injured workers into the network under certain conditions. There is a notice procedure for that too. Notice has become an important issue, chiefly because applicant's attorneys sometimes claim avoidance of the network because of late or inadequate notice.

The Labor Code itself speaks of this issue. Section 4616.3 provides that the employer must notify the employee of his or her right to treat with a physician within the network "and the method by which the list of participating providers may be accessed by the employee". Along these lines, Regulation Section 9767.6(d) in the context of a discussion regarding change of physicians within the MPN repeats the mandate of notification "after the first visit with the MPN physician". It also echoes the Labor Code's requirement that the employee be provided with a list of participating providers and a method of accessing them. Neither of these provisions give time limits for notice.

More particularly, Regulation Section 9767.12 is entitled "Employee Notification" and specifies two separate notification requirements.

It first concerns notification at the time an MPN begins. Section 9767.12(a) indicates that notice must be given to "each covered employee in writing" about the use of the MPN. This is to be done thirty (30) days prior to the implementation of the MPN, at the time of hire, or when an existing employee transfers into the MPN, "whichever is appropriate to ensure the employee has received the initial notification."

It is also specified that an applicant is entitled to notification "at the time of injury". This does appear to require a separate notice. How much time is given to send the notice? This is unfortunately not made clear. As discussed further below, if the injury has already occurred at the time the network is created, notice is required if a transfer of care is attempted.

Both sorts of notifications under Regulation Section 9767.12 are required to be written in both English and Spanish. Also, there are a number of items (13 listed) required to be included in the notice to the employee. These collectively describe the virtual entirety of the MPN process. Applicant attorneys have taken pains to make a long list of demands for information and documentation when provided notice of the MPN. This is done in order to set up a claim of noncompliance with the notice standards, whether because they are not served timely or because they are not complete. The argument runs that failure to provide proper notice should result in the applicant being relieved from the obligation to treat within the network.

In particular is Regulation Section 9767.12(a)(3). According to this requirement the notice is to advise the applicant how to review, receive or access the MPN provider directory. This goes on to say that "nothing precludes an employer or insurer from initially providing covered employees with regional area listing of MPN providers in addition to maintaining and making available its complete provider listing in writing". Applicant attorneys claim this means that the complete provider listing must be provided in writing upon request. They know that this is unduly burdensome on the defense because of the long list of medical providers available. If the defense takes a position that it is not required to provide the provider list in writing, and points out that all the information is available on a web site, equal protection arguments for destitute employees without computers are raised. Certainly, there will be an extensive amount of litigation in this area.

Will a failure to provide timely or complete notice result in a loss of medical control, thus allowing the applicant to establish a treating relationship outside the network? The law on this has not been decided. In accordance with the discussion under the topic of pre-designated physicians, there is at least one case in the past where it was held that a failure to provide notice was without real consequence. (Albert Perez v. WCAB (1999) 64 CCC 323; a failure to post a notice was not sufficient to cause a loss of medical control.).

Transfer of Care

The defense has the right under limited circumstances to transfer the care of an injured worker into the MPN. The applicant may of course choose the physician, but the care is transferred to a physician in the MPN. This is true regardless of the date of injury.

Labor Code Section 4616.2 talks about something called the "continuity of care policy." It is specified in this Labor Code section that the applicant is to be allowed to complete the treatment being provided by a current provider only under some circumstances. If those are not met, transfer occurs. When a network plan is approved by the Administrative Director, the written Continuity of Care policy is to be filed and considered. The insurer or employer is to provide all employees entering the workers' compensation system notice of its written Continuity of Care policy and information regarding the process for an employee to request a review under the policy. Upon request, the defense has to provide a written policy to the public.

To supplement this Labor Code we are given two separate regulations. Regulation Section 9767.9 is entitled "Transfer of Ongoing Care into the MPN". Another Regulation Section 9767.10 is entitled "Continuity of Care Policy." These two Regulations are virtual mirror images of one another, and it is not exactly clear what the difference is between the transfer of ongoing care and a continuity of care. Perhaps continuity of care is meant to pertain to movements from one network to another or one provider to another rather than to a move from one primary treating physician to another. In any case, there is a well laid out system to describe what is supposed to happen in these situations.

If the applicant's original treating physician is already in the network, then obviously care does continue with that physician. The applicant is only allowed to retain treating physician services outside the network under four specified conditions. However, even if one of these conditions is met, the treating relationship existing outside the network can only go on for a year. The Labor Code and the Regulations repeat the four possible conditions word for word with only the most minor discrepancies.

1. He or she has an "acute condition". This is defined as a medical condition that involves a sudden onset of symptoms due to an illness or injury "or other medical problem that requires prompt medical attention and that has a limited duration." The Regulations specify that this means less than ninety days. This is obviously an extremely broad definition. It can mean a lot of things. The Statute concludes that "completion of treatment shall be provided for the duration of the acute condition."

2. A serious chronic condition will merit continual care of the original treating physician as well. This is defined as "a medical condition due to a disease, illness or other medical problem or mental disorder that is serious in nature, and that persists without full cure or worsens over an extended period of time or requires ongoing treatment to maintain remission or prevent deterioration." The Regulations define this as lasting more than ninety days. Once again, this is an extremely broad definition. Completion of treatment under this standard is not to exceed 12 months from the commencement of the employer network; the Regulations specify that this means one year from the notice of the network being provided to the employee.

This statute says that completion of treatment is to be provided for a period of time necessary to complete a course of treatment, and to arrange for a safe transfer to another provider. Consultation is to take place between the insurer or employer and the injured employee and the former treating physician, and is to be consistent with good professional practice. All these general terms do not really give us much. The bottom line is that care is to continue unbroken to the extent possible, and not a year is to go by before transfer is complete.

3. A terminal illness. Completion of the treatment is to be provided throughout the illness until the point of death. Terminal illness is defined as an "incurable or irreversible condition that has a high probability of causing death within one year or less." There is no one year limitation explicitly spelled out here. If the applicant lives more than a year then presumably the treating relationship would continue. However, in that event the problem would have to be reassessed to see if it meets the definition of a terminal illness.

4. Performance of a surgery or other procedure that is authorized by insurer or employer. This surgery is to occur within 180 days of the establishment of the network.

Is there any situation that this does not cover? It seems clear that a very liberal standard is used. The Regulations supplement the statute, and it is hard to see how just about any injury would not qualify as either acute of chronic under these definitions. Perhaps it is the intention of the legislature to let applicants treat with their existing doctors for the first year, in almost all cases. If it cannot be wrapped up in a year, then the transfer is warranted. It is, ultimately, just a matter of time.

In any case, when the employer decides to make the transfer into the network, a notice is required. The applicant is to be notified that there has been a determination that one of the four exceptions does not apply. It is specified here that the notification shall be sent to the applicant's residence and a copy sent to the applicant's primary treating physician. That can be a little tricky in some cases where the applicant's primary treating physician is in dispute or has never been properly identified. The notification is to be sent in English and Spanish and is to "use layperson's terms to the maximum extent possible." Note that the extensive and detailed notice requirements of Regulation Section 9767.12 (above) are not needed here. We are dealing with a much more simple sort of notice.

Once the applicant receives the determination, the applicant is to request a report from the primary treating physician that addresses whether one of the four exceptions apply. The Regulations go on to say "the treating physician shall provide the report to the covered employee within 20 calendar days of the request." If the treating physician does not provide the report, then the determination made by the employer stands.

I should point out that the key language here is unfortunately not as precise as one would like it to be. The treating physician's report is not due until 20 days after the applicant makes the request. There is no designated time period for the applicant to make the request. This leaves an avenue open for applicant attorneys to make a request arguably at any point. It likely will be found at some point that the applicant must make the request within a reasonable time period. At some point, the issue is forced, because the defense will refuse to authorize treatment after the determination is set. Right now, most defense attorneys seem to be taking the position that if there is no response from the treating physician within 20 days from notice to the applicant, that the transfer is deemed proper. It is also a problem because if the applicant does request a determination by the treating physician, it is not necessarily required that the defense receive notice that the request was made. This could lead to a lot of confusion and issues of fact on the point.

Note that the statute itself contains language referring to the continuity of care concept that add some confusion, and that are not dealt within the Regulations. The defense can require the former treating physician to agree in writing to be subject to the same contractual terms and conditions that were imposed upon the provider prior to termination. This of course assumes a specific contract. If the former provider does not agree, the care does not have to continue. That seems problematic if an injured worker is caught in the middle. The defense can agree to provide continuity of care beyond these requirements. It is not obligated to continue treatment with a provider whose contract has been terminated or not reviewed for reasons relating to medical disciplinary cause or reason. Rates and methods of payment are to be continued per the original contract, or as what would be applicable in a similar geographic area. These terms seem to apply to a transfer from one organization to another, perhaps one network to another, rather than to a transfer of care to a new doctor. As noted above the distinction is unclear.

C. Treatment and Dispute Resolution

The legislature has provided for an exclusive resolution process for disputes over treatment that arise within a network. If an applicant disputes either the diagnosis or the treatment prescribed by the treating physician within the network, he or she may seek an opinion on the issue with another physician within the network. A third opinion may also be sought, and if that is not acceptable, one more medical opinion is allowed. This last opinion is performed by a physician selected by the Administrative Director, called the Independent Medical Reviewer, or IMR (also known informally as the "super doctor").

It appears that this process of resolution is exclusive. Labor Code Section 4616.6 states "No additional examinations shall be ordered . . . and no other reports shall be admissible to resolve any controversy arising out of this article." That would exclude the medical legal process in its entirety. What is a "controversy arising out of this article"? The article describes the creation and implementation of networks, and includes the dispute resolution process where the applicant disagrees with proposed medical treatment or diagnostics. Arguably, the scope of this language is meant to pertain to disputes over medical treatment. It is not clear that it pertains to other issues. If this language were to be read too broadly, it would eliminate the medical legal process in its entirety for any issue where a network is involved. It is doubtful that is what was intended.

A poignant issue is how this provision relates to the longstanding Regulation Section 9785. This Regulation has long stood for the idea that a change in treating physician could not be made after P&S status, unless the medical legal procedure under Labor Code Sub Section 4061 and 4062 were done first. As noted above, the newly proposed Regulation says about the same thing. Given the language of this statute, it may well be that this sort of dispute falls under the purview of Labor Code Section 4616.6. However, it is far from certain that the issues of P&S status, change of treating physician and entitlement to future medical care are confined to the network statutes.

Note, that this is on the face of it a benefit to the defense, as it confines the applicant's ability to contest treatment issues. On the other hand, this can also be hard on the defense, who is not given the right to initiate this process. The defense cannot ask for a change of treating physician as described above; nor can the defense turn to the medical-legal process, at least as to treatment issues. It seems the defense gets medical control, but is also stuck with the doctor selected by the applicant.

This resolution process is described in Labor Code Sub Section 4616.3 and 4616.4. These are further explained by Regulation Section 9767.7. There are extensive Regulations dealing with the process of selecting, monitoring and implementing the IMR; these are Regulations Sub Section 9768.1 through 9768.17.

In the event of dispute over treatment or a diagnostic, the employee is supposed to choose the physician with the appropriate specialty or expertise in treating the particular condition. Regulation Section 9767.7 lays it out nicely. The applicant is responsible for notifying the employer of the dispute, selecting a doctor from the list, making an appointment within sixty days, and informing the defense of the appointment. The defense is to provide a "regional area listing" of providers or specialists as appropriate to the applicant, inform the applicant of his or her right to see the records that will be sent to that physician (and provide them if requested), and send the records to the second opinion physician, along with written notice of the nature of the dispute (with a copy to the applicant). If the applicant does not make the appointment within sixty days of getting the list, the objection is waived.

If the second opinion physician determines that the issue is outside the scope of that physician's expertise, notice is to be sent so that a new doctor can be picked. If the applicant gets his or her way, the defense is not given the ability to continue the process by selecting the third physician. (The defense presumably could depose that physician and bring the case to the Board for an expedited hearing.) If the applicant does not get his or her way, the process can be started all over again and a third treating doctor can be selected. If after that the applicant does not get his or her way again, an IMR may be selected. The process for selecting the IMR is set out in Regulation Section 9768.9. Notice of the process and a form is to be sent to the applicant at the time the third treating doctor is selected.

Note that the second or third physician may schedule diagnostics if deemed necessary. If the dispute is over something like an MRI, the dispute process itself may resolve the issue. Recommended treatment by these doctors is to be performed within the network.

The next step of review in the event of a dispute over medical treatment is the newly established IMR process. The Labor Code and Regulations have a tremendous amount to say about how this program is to be handled.
<>br These must be licensed physicians, but are not necessarily QMEs. The Administrative Director is to contract with individual physicians or an independent medical review organization to perform these reviews. The Administrative Director is responsible to make sure that these doctors are credentialed and privileged and that the reviews provided by the medical professionals are timely, clear and credible. He or she is to be sure that medical professionals who provide a fair and impartial panel are selected, that confidentiality of medical records is respected, and that there is no conflict of interest. All individuals selected must be licensed physicians, and in a particular case, the medical professional is to be knowledgeable in the treatment of the employee's medical condition, knowledgeable about the proposed treatment, and familiar with the guidelines and protocols in the area of treatment under review. The physicians are also to hold a current certification by a recognized American specialty board. Their license does not have to be in California. Each medical professional is to have no history of disciplinary action or sanctions, or be "under accusation" by a licensing agency. The Administrative Director keeps a list of IMRs, signs two-year contracts, and can put IMRs on inactive status or remove them for good cause.

The Administrative Director upon receipt of the form signed by the applicant selects the IMR. The applicant can request an examination, or a report based upon the records, and may request an alternate specialty from that of the treating physician. The applicant can object within ten days if there is a conflict of interest. The Administrative Director can also replace the IMR if it is found that the wrong specialty was used. Again, the applicant has only sixty days to schedule the exam or the dispute is waived; if there is a missed appointment, he has five days to reschedule. The defense is to schedule interpreters and medically necessary transportation. The applicant can provide any relevant material or documentation with the application. The defendant can and must provide the reviewer with information "that was considered in relation to the disputed treatment or diagnostic service" and "all relevant medical records". The applicant receives copies. The Labor Code specifies that this can include:

"1. A copy of all correspondence from and received by any treating physician who provided a treatment or diagnostic service to the injured employee in connection with the injury.

2. A complete and legible copy of all medical records and other information used by the physicians in making a decision regarding the disputed treatment or diagnostic service."

The medical reviewer then conducts the examination. He or she is to do a physical examination. He can order any diagnostic tests necessary. He or she is to utilize the Utilization Schedule and make a decision about the proposed diagnostic or treatment. The reviewer issues a report to the Administrative Director within 20 days of examination, unless there is a serious threat to the health of the applicant, when the report is to be expedited and rendered within three days of the examination. A serious threat to the applicant's health is loosely defined as "including but not limited to serious pain, the potential loss of life, limb or major bodily function, or the immediate and serious deterioration of the injured employee." The Administrator can add on up to three days to the three-day period in extraordinary circumstances for good cause. The IMR cannot treat the applicant except in an emergency.

The report is to be complete and standards are specifically set out in Regulation Section 9768.12. Whether or not there are special considerations, the Administrative Director upon receipt of the reporting is to "immediately" adopt the determination of the reviewer and issue a written decision to the parties. That means, according to Regulation Section 9786.16, within five business days.

If the applicant wins, and the disputed treatment or diagnostic service is awarded, he or she can get it from a physician outside the network, and the defense is liable for the cost. The treatment outside the network is limited to that in dispute, per Regulation Section 9768.17. The defense is boxed in at this point. Since the report is to be in line with Utilization Guidelines, there would seem to be nothing stopping a doctor's deposition and an expedited hearing. Nevertheless, this structure remains designed to tightly control any disputes over medical treatment.

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