California: MPN Treatment Resolution: Separate and Distinct vs. Part and Parcel

Did the Legislature intend for there to be two separate methodologies for resolving treatment disputes?

By Brad Wixen, Esq.

The essential question in Parrent v. SBC-Pacific Bell Telephone Company, 2016 Cal. Wrk. Comp. P.D. LEXIS --, is whether the Medical Provider Network (MPN) method of resolving disputes concerning medical treatment was meant to be an entirely separate system apart from the UR/IMR prescribed methodology; or, in the alternative, are the systems somehow overlapping and unified?

(Publisher’s Note: Citations link to Lexis Advance.)

A brief review is in order. Under the “traditional” UR IMR procedures outlined in Labor Code sections 4610, 4610.5, and 4610.6, disputes concerning treatment follow several strict multiple time deadlines ultimately culminating in a utilization review (UR) process. If the findings of the utilization review are disputed by one party, they may request an independent medical review (IMR). Provided that the UR decision is issued timely, the decision is not subject to further jurisdiction by the WCAB but instead becomes the subject of a conclusory IMR set forth in Labor Code section 4610.6. (See Dubon v. World Restoration Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc decision), and “WCAB Panel Finds UR IMR Physician Need Not Be Licensed in California”)

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On the other hand, if the applicant is enrolled in an MPN, there is definitely a different procedure of resolving medical disputes. It is true that 8 Cal. Code Reg. § 9792.6.1 also demands that the MPN physicians submit the same authorization of medical treatment (the “RFA”) as under the UR rules. However, if the applicant has a medical dispute concerning the MPN physician’s recommendations, 8 Cal. Code Reg. § 9767.1 et seq. comes into play. Under this process, the applicant can obtain a second and even third opinion from additional MPN physicians. Ultimately, if the applicant's dispute is not resolved, the matter goes to an MPN IMR to resolve the dispute. Importantly, there is no specific statute specifically applying to the MPN system that explicitly removes WCAB jurisdiction from the process.

All of these issues came to a head in the case of Gregory Parrent. Applicant's physician’s requested treatment was denied by the “traditional” UR IMR process. But, applicant's attorney insisted that the proper methodology for such a determination was the MPN process itself, including the input of the WCAB which retained jurisdiction.

Applicant's attorney makes some interesting arguments justifying their proposal. They point out that the Labor Code does indeed have alternative methods of healthcare delivery systems, such as group disability, welfare, etc. Thus, to argue for two separate systems is not without precedent. They also pointed to the logical lack of necessity for creating a separate UR provision for MPN's if Labor Code section 4610 was intended to apply to the MPN process. Applicant’s attorney reasoned that because the employer has the exclusive right to pick the physician in its MPN, a higher statutory quality assurance requirement was accordingly built into the system.

The WCAB panel rejected these arguments. First, they point out that ultimately all medical disputes whether in the MPN or not are given the same uniform standard of care, mainly the Medical Treatment Utilization Schedule (MTUS) based on evidence-based peer-reviewed nationally recognized standards of care (Labor Code section 5307.27), and the panel highlighted that 8 Cal. Code Reg. § 9792.6.1 demands the same request for authorization (RFA) of treatment whether in the MPN or not. In coming to their decision, the panel concurred with a prior panel decision in Stock v. Camarillo State Hospital, 2014 Cal. Wrk. Comp. P.D. LEXIS 471. In the end, they conclude that, "[t]here is nothing in the statutory provisions creating the MPN system that evinces a legislative intent to exempt the MPN medical treatment recommendations from UR. Had the Legislature so intended to include MPN physicians’ treatment recommendations from UR, it would have expressly excluded them.”

In a very interesting separate but concurring opinion, Commissioner Sweeney agrees with the other panelists that the WCJ did not have jurisdiction to address the MPN treating physician’s findings, and that defendant had every right to submit the dispute to “traditional” UR resolution. However, she then goes on to state that, nonetheless, the code does explicitly allow applicant's attorney a separate mechanism to pursue the issue, mainly the MPN dispute process. "Thus, even if an insurer raises a dispute with the treating physician's recommendation and submits the issue to UR, an injured worker may exercise his or her right to initiate the second opinion process provided in Labor Code section 4616.3, or change treating physicians within the MPN."

Analysis:

The concurring opinion of Commissioner Sweeney highlights why applicant's argument does indeed have some logical appeal. While the opinion of the various panels may turn out to prevail in the end, Commissioner Sweeney points out that there is, after all, a system for resolving disputes specifically limited to the MPN process. One cannot simply make those provisions go away. Thus, we end up with the system in which there are competing methods apparently operating at the same time. Many questions would arise from this system. What if one system finds that there is no need for treatment after IMR? And what if the other system finds there is need for treatment after a second or third opinion? What happens if there is a final decision by “traditional” UR IMR not subject to further jurisdiction but then the MPN works its way through and comes to a different decision? While it is certainly possible that the panel decision will indeed prevail, there is the clear argument that a simpler, cleaner, more logical solution would be that there are simply two separate methodologies. This certainly prevents the overlap.

The other problem with the Commissioners' conclusions is that, in the end, it is based on lack of specific direction from the statutory law. The Commissioners reason that if there was an intent to make the systems separate, the Legislature should have been stated more explicitly. Applicant's attorney argues that the mere existence of the two systems speaks for itself.

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Tips for the Practitioner:

What cannot be emphasized enough here is that all of these decisions are findings by a panel. Panel decisions have no precedential weight. Another panel need not adopt the conclusions. An appellate court certainly is not bound by the position of any such panel. It would seem that the argument does indeed remain wide open. For the applicant's attorney concerned about his client being denied treatment, it certainly would be prudent to pursue all avenues simultaneously.

Read the Parrent noteworthy panel decision.

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