ADJ12031213 · June 29, 2021

Applicant failed to prove that defendant's MPN did not meet access standards or that the MAA failed to schedule an appointment within required timeframes, and did not select a physician from the MPN list.

From the decision · page 1Applicant seeks reconsideration or in the alternative removal of the Findings of Fact and Orders (F&O) issued by the workers' compensation administrative law judge (WCJ) on August 10, 2020. By the F&O, the WCJ found that "[a]pplicant's request for referral to a pain management specialist constituted a request for care under [Administrative Director (AD) Rule] 9767.5(g)." The WCJ also found that applicant failed to select a physician from the list of three physicians provided by the medical access assistant (MAA). Applicant's petition to allow treatment outside the medical provider network (MPN) was ordered denied.

Applicant did not select a primary treating physician from the MPN list provided by the MAA.

Favours Defendant prevailed

Without selection, there was no basis to conclude MAA failed to schedule appointment within 20 days as required by AD Rule 9767.5(g).

From the decision · page 10Applicant also contends that he is entitled to treat outside the MPN because the MAA could not schedule an appointment with a primary treating physician within 20 business days per AD Rule 9767.5(g). Preliminarily, the record reflects that applicant never selected a primary treating physician from either the list offered by the MAA or otherwise from amongst the other physicians within the MPN. There is consequently insufficient evidence to conclude the MAA did not meet the asserted 20-day timeframe because applicant never selected a physician for the MAA to attempt to schedule an appointment.

Defendant produced a list of 23 pain management physicians in the MPN within 30 miles of applicant's residence.

Favours Defendant prevailed

This demonstrated that the MPN met access standards and had adequate physicians available.

From the decision · page 9Applicant not only incorrectly restricted the analysis of whether defendant's MPN meets the access standards for primary treating physicians by his preferred specialty of pain management, but also solely by consideration of the three physicians that the MAA identified in its email. The three identified physicians are not the only physicians within defendant's MPN. Applicant did not provide sufficient evidence that there were not at least three physicians available in any appropriate specialty from within the 15 mile/30 minute access standard in defendant's MPN. Defendant produced a list of 23 pain management doctors in the MPN within the 30-mile radius requested by applicant.3 Defendant also reported at trial that there are "as many as 140 orthopedic surgeons

Provided treatment to applicant as primary treating physician until retirement.

From the decision · page 2FACTUAL BACKGROUND Applicant claims injury to his neck, back, bilateral shoulders, bilateral upper extremities, bilateral knees, headaches, hypertension, diabetes and psyche through December 12, 2018 while employed as a maintenance worker by Western National Group. The claim was originally denied by defendant, but was then accepted for certain body parts with medical treatment being provided. The chiropractic qualified medical evaluator (QME) Hungchiao Lisa Wu, D.C. opined that applicant sustained a cumulative trauma injury to his neck, low back, shoulders, wrists, hands and knees. (Court's Exhibit X, PQME report of Hungchiao Wu, D.C., May 3, 2020, p. 3.) Dr. Wu recommended various treatment modalities in her May 3, 2020 report including a "pain management consultation." (Id.) Sam Tabibian, M.D., a physical medicine physician, was providing treatment to applicant as his primary treating physician (PTP) until he retired. (Minutes of Expedited Hearing, July 23, 2020, p.

Labor Code section 4600

Labor Code section 4600 requires employer to provide reasonable medical treatment to cure or relieve effects of industrial injury.

Applicant seeks treatment outside MPN; burden on applicant to prove entitlement.

From the decision · page 4Labor Code section 4600 requires the employer to provide reasonable medical treatment to cure or relieve from the effects of an industrial injury. (Lab. Code, § 4600(a).)1 If an employer has established an MPN, an injured worker is generally limited to treating with a physician from within the employer's MPN. (Lab. Code, § 4600(c), 4616 et seq.)

Labor Code section 4616

Labor Code section 4616 requires injured worker to treat within employer's MPN if established.

Applicant must prove entitlement to treat outside MPN.

From the decision · page 4Labor Code section 4600 requires the employer to provide reasonable medical treatment to cure or relieve from the effects of an industrial injury. (Lab. Code, § 4600(a).)1 If an employer has established an MPN, an injured worker is generally limited to treating with a physician from within the employer's MPN. (Lab. Code, § 4600(c), 4616 et seq.)

AD Rule 9767.5(g)

AD Rule 9767.5(g) requires MPN to provide appointment within 20 business days of referral to specialist.

Rule applies only to specialist referrals, not initial PTP appointments; applicant did not show rule was violated.

From the decision · page 11referral, not to the scheduling of an initial appointment with a primary treating physician.4 The Rule references "specialist services" and "a specialist in an appropriate referred specialty." As discussed above, the Rules distinguish between a specialist and a primary treating physician. The language of AD Rule 9767.5(g) suggests that it applies where there has been a referral to a specialist, particularly since applying this Rule to an initial appointment with a primary treating physician potentially creates conflicting timeframes within the Rule. (See Cal. Code Regs., tit. 8, § 9767.5(f).) Moreover, this reading comports with the interpretation endorsed by the panel in Gomez of a previous version of this regulatory subdivision: "Where there has been a referral to a specialist for non-emergency services, the MPN must provide an appointment within 20 days of the referral within the MPN. (AD Rule 9767.5(g).)"5 (Gomez, supra, at pp. *9-10.)

AD Rule 9767.6(e)

AD Rule 9767.6(e) requires selection of treating physician based on specialty or expertise within MPN.

Applicant must select physician from MPN list; failure to do so undermines claim.

From the decision · page 5At any point in time after the initial medical evaluation with an MPN physician, the covered employee may select a physician of his or her choice from within the MPN. Selection by the covered employee of a treating physician and any subsequent physicians shall be based on the physician's specialty or recognized expertise in treating the particular injury or condition in question.

Applicant did not select a primary treating physician from the MPN list provided by the MAA, so there was insufficient evidence that the MAA failed to schedule an appointment within 20 business days.

From the decision · page 10Applicant also contends that he is entitled to treat outside the MPN because the MAA could not schedule an appointment with a primary treating physician within 20 business days per AD Rule 9767.5(g). Preliminarily, the record reflects that applicant never selected a primary treating physician from either the list offered by the MAA or otherwise from amongst the other physicians within the MPN. There is consequently insufficient evidence to conclude the MAA did not meet the asserted 20-day timeframe because applicant never selected a physician for the MAA to attempt to schedule an appointment.

Defendant produced a list of 23 pain management doctors in the MPN within 30 miles of applicant's residence, showing adequate access to physicians.

From the decision · page 9Applicant not only incorrectly restricted the analysis of whether defendant's MPN meets the access standards for primary treating physicians by his preferred specialty of pain management, but also solely by consideration of the three physicians that the MAA identified in its email. The three identified physicians are not the only physicians within defendant's MPN. Applicant did not provide sufficient evidence that there were not at least three physicians available in any appropriate specialty from within the 15 mile/30 minute access standard in defendant's MPN. Defendant produced a list of 23 pain management doctors in the MPN within the 30-mile radius requested by applicant.3 Defendant also reported at trial that there are "as many as 140 orthopedic surgeons