California Labor Code § 4616.3

Determinative passage · p.6Finally, insofar as lien claimant asserts defendant's dilatory MPN notice required applicant to self-procure medical treatment at employer expense, we observe that pursuant to section 4616.3(b), "[t]he employer's failure to provide notice... shall not be a basis for the employee to

No evidence of denial of care due to delayed MPN notice; self-procured treatment not justified.

Determinative passage · p.6Defendant contends that applicant has not met her burden to establish neglect or a refusal to provide treatment. This burden however is misplaced, it is the defendant's burden to establish the existence of the MPN, that defendant provided the required Notices of the MPN, 8 Cal. Code of Regs. § 9767.12, both prior to the injury and subsequent to the injury, and that treatment was provided and not neglected. In order to meet this burden, the defendant must submit evidence of its MPN, the notices provided and the treatment offered. The defendant did not submit any evidence, either documentary or through testimony, to meet its burden. As set forth in the Opinion on Decision, the court addressed Knight v. United Parcel Service (2006) 71 Cal.Comp.Cas. 1423 as well as Senate Bill 863 which resulted in Labor Code § 4616.3(b)1 being implemented. In its analysis, the court held as follows:

Applied to find defendant failed to meet burden of proof, resulting in denial of reconsideration and allowance for applicant to treat outside MPN.

Determinative passage · p.4III. We highlight the following legal principles that may be relevant to our review of this matter: 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).) If an employer has established an MPN, injured workers are generally limited to treatment with a physician from within that MPN. (Lab. Code, § 4600(c), 4616 et seq.) Pursuant to WCAB Rule 9767.6(e), at any point in time after the initial medical evaluation with the MPN physician, "the covered employee may select a physician of his or her choice from within the MPN." (Cal. Code Regs., tit. 8, § 9767.6(e).) Further, pursuant to WCAB Rule 9767.7(a), "[i]f the covered employee disputes either the diagnosis or the treatment prescribed by the primary treating physician or the treating physician, the employee may obtain a second and third opinion from physicians within the MPN." (Cal. Code Regs., tit.

Employee may seek second and third opinions and IMR within MPN if dispute exists.

Determinative passage · p.4Section 4600 requires the employer to provide reasonable medical treatment to cure or relieve from the effects of an industrial injury. (Lab. Code, § 4600(a).) If an employer has established an MPN, injured workers are generally limited to treating with a physician from within the employer's MPN. (Lab. Code, § 4600(c), 4616 et seq.) However, if the employer neglects or refuses to provide reasonably necessary medical treatment, whether through an MPN or otherwise, then an injured worker may self-procure medical treatment at the employer's expense. (Lab. Code, § 4600(a); McCoy v. Industrial Acc. Com. (1966) 64 Cal.2d 82 [31 Cal.Comp.Cases 93].)

Determination whether employer failed to meet statutory notice obligations and neglected or refused medical treatment during delay period.

Determinative passage · p.8Following notification by the injured employee of the injury, or upon the filing of a claim form with the employer, the employer shall arrange an initial medical evaluation and begin treatment as required by Labor Code § 4600. [See Labor Code § 4616.3(a).] The employer shall also notify the employee of the existence of the MPN, along with the right to change physicians within the MPN after the first visit, and the method by which the list of participating providers may be accessed by the employee. [See Labor Code § 4616.3(b).]

The Board considered Defendant's compliance with these notification and scheduling duties.

Determinative passage · p.4If the employee disputes a medical determination made by the primary treating physician, including a determination that the employee should be released from care, the dispute shall be resolved under the applicable procedures set forth at Labor Code sections 4060, 4061 4062, 4600.5, 4616.3, or 4616.4.... (Cal. Code Regs., tit. 8, § 9785(b)(3).) Here, the record contains no evidence that at any time applicant objected to Dr. Berg's determination that he needed no more medical treatment and was released from care. In the C&R applicant stipulated that he was working his usual and customary duties up to the termination of his employment and the trial record does not include any evidence that he sought medical treatment until he was seen by Dr. Shen on January 18, 2017. Absent a timely objection to Dr. Berg's determination that applicant needed no further medical treatment, and absent any evidence that applicant complied with the Labor Code sections referred to in AD rule 9785(b)(3), quoted above, applicant is not entitled to medical treatment for the August 7, 2008 injury. We also note that since applicant did not seek treatment for approximately eight years after his last treatment by Dr. Berg, there is no evidence that the treatment provided by Lien Claimant was actually for symptoms that were a result of the 2008 injury. Accordingly, we will deny reconsideration.

No evidence applicant objected to Dr. Berg's release or complied with dispute procedures; no entitlement to further treatment.

Determinative passage · p.7Yet, defendant must transfer applicant's care into the MPN in conformity with the applicable statutes and regulations. (Babbitt, supra, 72 Cal.Comp.Cases at p. 71.) This necessitates providing applicant with the requisite MPN notice. (See Cal. Code Regs., tit. 8, § 9767.12(a) and (a)(2); see also Lab. Code, § 4616.3(b) [the employer is required to provide notice of the MPN to an employee, but a failure to do so only permits treatment outside the MPN if it results in a denial of care].) Additionally, defendant must comply with the process outlined in AD Rule 9767.9(f) for transferring care. The transfer of care provisions in Rule 9767.9(f) require defendant to make a determination regarding whether applicant's condition satisfies--or fails to satisfy--one of the four conditions set forth in subsections (e)(1)-(4). This section requires that defendant determine whether applicant has a condition which would allow her to complete treatment with her PTP. Furthermore, the regulation requires that defendant notify applicant of its determination regarding completion of care. This notification must also be sent to applicant's PTP, be in English and Spanish, and use layperson's terms to the maximum extent possible.

Employer's obligation to provide notice of MPN; failure to do so permits treatment outside MPN if it results in denial of care.