California: Disputing an MPN Physician’s Release From Care

When an employee disputes an MPN physician’s release from care, is the employee entitled to choose to resolve the dispute with the treating physician’s diagnosis or treatment by either obtaining a second opinion within the MPN or by selecting a panel qualified medical evaluator?

In Fernandez v. Kmart, 2016 Cal. Wrk. Comp. P.D. LEXIS 18 (lexis.com) (Lexis Advance), the WCAB, amending the WCJ’s order, held that the 10/15/2014 progress report of the applicant’s MPN treating physician Steve Dae Kim, D.O., purporting to find that the applicant required no further medical treatment and had no residual permanent disability, did not constitute a valid release from medical care for the applicant’s 6/30/2014 industrial knee and wrist injuries and did not justify the defendant’s refusal to authorize the applicant to utilize the second opinion process within the defendant’s MPN pursuant to Labor Code § 4616.3 [LC 4616.3].

[Publisher’s Note: Citations link to lexis.com; bracketed cites link to Lexis Advance.]

However, the WCAB panel majority concluded that the defendant’s refusal to authorize the second opinion physician and its position that the applicant was required to follow the panel qualified medical evaluator process in Labor Code §§ 4061 and 4062 [LC 4061, 4062] did not constitute a denial of medical treatment such that the applicant, whose dispute was over the diagnosis and/or treatment prescribed by Dr. Kim, was entitled to obtain her medical treatment outside the MPN.

The WCAB panel majority reasoned that the applicant’s request that the defendant authorize an evaluation by an MPN second opinion physician Dr. Fernando Ravessoud did not constitute a request for authorization of medical treatment, and, instead, was equivalent to a request for a panel qualified medical evaluator in a non-MPN case. Just like a qualified medical evaluator, the second opinion physician would not be acting as a treating physician but was selected to offer an opinion on the treating physician’s diagnosis or treatment. If the second opinion physician found the applicant to be in need of additional medical treatment after the review of diagnosis and treatment provided by Dr. Kim, the applicant could have returned to Dr. Kim, requested a change of treating physician, or could have obtained the recommended treatment from a second opinion physician as provided in 8 Cal. Code Reg. § 9767.7(g) [R 9767.7]. In the absence of a denial of authorization of medical treatment, the defendant did not lose control of the applicant’s medical treatment so as to entitle the applicant to treatment outside the MPN.

Commissioner Sweeney, concurring separately, believed that an employee who has been released from care by a treating physician within the MPN is entitled to choose to resolve the dispute with the treating physician’s diagnosis or treatment by either obtaining a second opinion within the MPN or by selecting a panel qualified medical evaluator pursuant to Labor Code § 4062, as this is consistent with the finding that a second opinion physician is not intended to supplant the role of the treating physician such that refusal to authorize the second opinion process does not rise to the level of denial of care.

Chairwoman Caplane concurred that Dr. Kim’s progress report was not substantial evidence constituting release from care, but, contrary to the panel majority, she concluded that the defendant’s refusal to authorize the applicant’s request for a second opinion physician amounted to neglect or refusal to provide medical care because, by requiring the applicant to follow the qualified medical evaluator dispute resolution process, the defendant placed the applicant in the position of having no means of obtaining medical treatment.

Commentary:

In Fernandez, the majority keyed in on the fact that applicant’s treating physician’s report, though a release from medical care, was internally inconsistent. The physician specifically indicated that applicant did not require care but also prescribed ongoing treatment modalities. This inconsistency allowed the panel to dodge the critical question that is being raised in the case. That question is whether 8 Cal. Code Reg. § 9785(b) [R 9785] and Tenet/Centinela Hosp. Med. Center v. WCAB (Rushing) (2001) 65 Cal. Comp. Cases 477 [65 CCC 477] (WCAB en banc) should still govern the process that the injured employee must follow after his or her primary treating physician (PTP) discharges them from care.

California Code of Regulations section 9785(b) states that an employee shall be able to designate a new treating physician pursuant to Labor Code Section 4600 [LC 4600] provided the primary treating physician has indicated there is a need for continuing care (emphasis added).

Tenet indicated that if the PTP released the employee from care and the employee objected to that opinion, the issue of applicant’s treatment had to be resolved pursuant to Labor Code Section 4062 before the employee could select a new PTP.

Labor Code Section 4616.3, subsection (c) [LC 4616.3], enacted as part of Senate Bill 899 in 2004, however, provides:

“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).

Thus, section 4616.3(c) specifically addresses an injured worker’s right to seek the opinion of another physician in the MPN when the employee disputes either the diagnosis or the treatment prescribed by the treating physician. This presumably would also address the lack of treatment prescribed by the PTP.

Section 4062 provides as follows:

“If either the employee or employer objects to a medical determination made by the treating physician concerning any medical issues…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… If the employee is represented by an attorney, a medical evaluation to determine the disputed medical issue shall be obtained as provided in Section 4062.2, and no other medical evaluation shall be obtained.”

The language of section 4616.3(c) is far more specific and expressly addresses an employee’s dispute over the diagnosis or treatment provided by an MPN doctor. Generally speaking, when dealing with statutory interpretation, more specific language controls over the more general language. Accordingly, if the legal question is which process the employee has to go through when disputing a treating physician’s discharge from care, the stronger legal argument probably rests with Section 4616.3(c).

However, perhaps the question should not be posed in terms of an either/or proposition. Indeed, according to both the majority as well as the concurring opinions in Fernandez, perhaps what the commissioners are really saying is that when an employee disputes an MPN physician’s release from care, he or she can choose either process to resolve the dispute.

Read the Fernandez noteworthy panel decision.

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