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Exception to MPN? (California)

PostPosted: Wed Jul 15, 2009 9:56 am
by jonbrissman
Maybe I'm missing something . . .

A couple of sentences in L.C. Sect. 4601(a) appear to provide an injured worker with an escape from treatment within MPNs: "The employee is entitled, in any serious case, upon request, to the services of a consulting physician, chiropractor, or acupuncturist of his or her choice at the expense of the employer. The treatment shall be at the expense of the employer."

I read the "serious case" phrase to mean something beyond first aid or medical-treatment-only cases. I read the "his or her choice" phrase to mean that the selection is not limited to physicians within a MPN. I read the first sentence to apply to consultation charges and the second sentence to apply to treatment charges when the consultant assumes the role of treater.

The language has been part of Sect. 4601 for at least a decade, and it certainly predated enactment of the MPN statute. So the questions are (1) did the Legislature intend to obviate the provision when it set up the MPNs but just overlooked it, or (2) did the Legislature intend to allow an injured worker to obtain consultations and transfer care outside the MPNs? Or is there some other question that should be asked?

At this point, I am not advocating for a particular interpretation of the statute. But I am interested in hearing feedback on what the community thinks about how the provision interacts with the MPN statute.


Re: Exception to MPN? (California)

PostPosted: Thu Jul 16, 2009 11:06 am
by steelmanlaw

One of the foremost canons of construction in appellate jurisprudence is harmonization of apparently contradictory statutes; it's been going on for centuries. Prior to the MPN, 4601 operated during the period of time when employer otherwise had only 30 days of medical control. (Notwithstanding the almost never utilized HCO's.) The MPN sections generally make employer control permament when compliance is otherwise proven, subject to the listed exceptions and case law. The task of the Recon Unit, court of appeal, supreme court or other appellate body is to harmonize apparent contradictions on the theory that the legislature has notice of all past and other statutes and presumably did not repeal those other statutes, unless explicitly so doing in the new statutes. Further, the legislature is always presumed to intend the entire body of California Codes to be in full force at all time. (In this case, statutes implementing the medical provider networks as well as section 4601.)

Therefore, the first place to look when such a latent ambiguity arises in application of disparate old and new statutes is "legislative intent" relative to the new statute, the MPN. Among other things, it should be determined whether "serious case" is intended to remain an exception to the MPN control, or vice versa, so as to decide whether one trumps the other. Obviously, the MPN statutes meant generally to tip the balance of control over treatment more to the employer. The survivability of "serious case" exception will have to address that aspect, at the very least, though it was not explicitly overturned by the MPN statutes.

Moreover, harmonizing those sections may result if the "his or her choice" aspect is enforced within those doctors available in the MPN. In that way, the sections working together have more harmony than discord, and application of both on some reasonable level is retained. Otherwise, those interests (MPN control vs. serious case exception) are in tension, which should be resolved by determining legislative intent.

This may sound more a research task than an answer, but there it is there. I look forward to reading further comments and/or your research results.


Re: Exception to MPN? (California)

PostPosted: Thu Jul 16, 2009 3:30 pm
by jonbrissman
Hi, Steelmanlaw. Thanks for your erudte response. Although you correctly set forth a framework for resolving the issue academically, any conclusion arising therefrom will have little effect.

I think we'll have to wait for some enterprising applicant or his counsel to defect from MPN-treatment and elect an out-of-network physician, then litigate the issue. Eventually, we will get an en banc decision of the WCAB or a Court of Appeal decision, either of which would have precedential effect. Until then, there is not likely to be any unanimity or consensus on what the provision actually means.


Re: Exception to MPN? (California)

PostPosted: Thu Jul 16, 2009 9:39 pm
This issue has been tried before in Laier,v WCAB 71 Cal. Comp. Cas 856 (WD). The WCJ and WCAB rejected the argument.

Not definative authority but all we have to date. I was not able to find any other citations that addressed this issue.

Re: Exception to MPN? (California)

PostPosted: Fri Jul 17, 2009 9:53 am
by jonbrissman
Thanks, Jake. I read the case and it's exactly on point. Until and unless superseding binding precedent issues, it's good enough for me.


Re: Exception to MPN? (California)

PostPosted: Thu Jul 23, 2009 8:23 am
by vampireinthenight
Thanks for the link Jake.

Re: Exception to MPN? (California)

PostPosted: Wed Oct 21, 2009 9:41 am
by saprrc
How do the MPN restrictions apply to secondary providers?

Specifically, is a physical therapy facility that is part of the MPN allowed to treat based upon a referral from a non-MPN PTP?

Thanks in advance.