California: MPN Treatment Requests Not Subject to UR/IMR

Karen C. Yotis, Esq., a Feature Resident Columnist for the LexisNexis Workers’ Compensation eNewsletter, provides insights into workplace issues and the nuts and bolts of the workers’ comp world.

Is Hogenson Du(ing) an End Run Around Dubon?

Is Dubon dead? Well, maybe. Judge Craig Glass raised this provocative possibility at LawWorm’s “Dealing With Dubon” seminar this past weekend in Long Beach when he spoke about Thomas Hogenson v. Volkswagen Credit, Inc., ADJ2145168 (Oxnard District Office), a case that is apparently garnering a great deal of attention from Christine Baker and the WCAB.

In Hogenson, WCJ Scott Seiden held that treatment requests submitted by Medical Provider Network (MPN) physicians are not subject to Utilization Review (UR) and Independent Medical Review (IMR) procedures, and that the UR reports obtained by the defendant in the case either fully or partially denying the MPN physician’s request for authorization (RFA) were inadmissible at trial.

It’s a small wonder then that the WCAB Commissioners are keeping a close watch on Hogenson. For if WCJ Seiden’s Opinion on Decision in Hogenson is upheld, the holding in Dubon (which has been divergently characterized on the one hand as a decision that stands for the integrity of the UR/IMR process and on the other as a striking example of the WCAB’s lack of full mental capacity) will follow Elrond to the City of Valinor and the Unknown Lands.

The physician in Hogenson, who the applicant selected from defendant’s MPN, submitted a RFA for three medications to treat the injured worker’s admitted back and neck injuries. The medications were either fully or partially denied by UR and an IMR process is pending.

The WCJ found no authority in the MPN statutory scheme permitting the defendant to challenge the treatment recommendations of MPN doctors, reasoning that if UR/IMR was applicable to an MPN doctor’s recommendations, statutory provisions to that effect would certainly exist given the MPN statutes’ enactment after the UR legislative provisions.

The WCJ further noted that the California Supreme Court’s decision in State Compensation Insurance Fund v. W.C.A.B. (Sandhagen) (2008) 44 Cal. 4th 230, 186 P.3d 535, 79 Cal. Rptr. 3d 171, 73 Cal. Comp. Cases 981, which requires all treatment disputes to go through UR, was decided prior to the enactment of the MPN statutes and does not apply to MPN treatment requests.

The WCJ also found that the provisions in 8 Cal. Code Reg. § 9767.7(g), allowing for second and third opinions to be obtained within an MPN, suggest that an employer must authorize the treatment recommended by the MPN physician and cannot challenge a recommendation through UR/IMR.

The WCJ further found that the UR/IMR of MPN treatment recommendations is precluded by Labor Code § 4616.6, which expressly excludes any other medical reports from consideration in MPN cases.

As explained by the WCJ, under the MPN statutory construction, the defendant has the option of either utilizing an MPN and maintaining control over an applicant’s medical treatment or allowing outside medical treatment and evaluating all treatment requests through the UR/IMR process.

The WCJ found that, here, the applicant met his burden of showing that the requested medical treatment was reasonable and necessary by submitting the medical reporting of the MPN treating physician.

The defendant sought reconsideration, contending in pertinent part that:

1. The WCJ erred in finding jurisdiction to hear a medical treatment dispute.

2. The WCJ erred in finding MPN physicians are not subject to UR.

3. The WCJ erred in finding UR reports inadmissible at a trial on the issue of medical treatment.

4. The WCJ erred in finding Applicant was entitled to the requested medical treatment

On June 18, 2014, the WCAB granted defendant’s petition for reconsideration to further study the factual and legal issues in this case.

During the LawWorm seminar, Judge Glass clarified the common sense approach underlying Hogenson when he explained:

“Basically, Judge Seiden said that defendant gets to stock the pond. You get to tell them who to pick, and that’s what you’ve got, and you cannot UR.”

In other words, a defendant who stocks an MPN pond cannot later complain that it does not like the taste of its own fish. Whatever an MPN physician says, what you see is what you get, and there is no reason to even proceed down the UR/IMR path.

Another LawWorm panelist, workers’ compensation defense attorney Corey Ingber, a principal at Ingber & Weinberg, LLP gave some practical insight into the realities of an MPN network (and into the WCJ’s reasoning in Hogenson) when he revealed:

“Most successful MPNs are put together by self-insured, self-administered employers who self-select the MPN physicians. [These clients] wouldn’t think of putting their own physicians through utilization review, because they are hand-picked.”

We asked our in-the-know California thought leader Robert G. Rassp what he thought about Hogenson and its potential effect on Dubon. In two words, not much. Rassp stated:

"I think this case is an anomaly and will not be upheld by the WCAB. If it is upheld, then the WCAB is creating two classes of medical treatment methods--one with an MPN where no UR or IMR occurs, and another where UR and IMR rule the world. I do not think this was the legislative intent. Although the trial judge believes the MPN provisions came first and then the UR/IMR provisions occurred later, I don't think the creation of two treatment tracks was the intent of the UR/IMR creation. Plus that fact [which came first] is irrelevant as to what applies to whom."

So while everyone waits for the continuing saga in Dubon to play out, the California workers’ compensation community also needs to keep its third eye on Hogenson. Will the case create more confusion in California's attempt to legislate cost containment, or is it just a flash in the pan? It’s going to be an interesting summer.

Read the Hogenson decision.

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