ADJ11289849 · June 18, 2024

The evidence showed Defendant had a validly established MPN at the time of injury and did not deny or neglect to provide medical care, despite a delay in scheduling treatment. The burden of proof for denial of care was not met by the Petitioner.

From the decision · page 31. Applicant's Occupation: Warehouseman Date of Injury: CT: August 15, 2010 April 19, 2018 Parts of Body Injured: Head, shoulders, nervous system, psyche and neck (alleged). Identity of Petitioner: Lien Claimant Premier Psychological Services filed the petition. Timeliness: The petition was timely filed. Verification: The petition was verified.

Defendant had a validly established MPN approved by the Division of Workers' Compensation at the time of Applicant's injury.

Favours Defendant prevailed

This fact established the legitimacy of Defendant's MPN, supporting the denial of Petitioner's claim that the MPN was invalid.

From the decision · page 7Of the various pleadings filed by Defendant and Lien Claimant on this subject, one was definitive of the issue at hand. In Defendant's Response to Objection to Petition for Judicial Notice, verification of the existence of Defendant's approved MPN was provided, along with confirmation that the collective of four insurance companies under Berkshire Hathaway Homestate Companies (of which Berkshire Hathaway Insurance Company is one) is grouped under the legal entity Cypress Insurance Company. [See Response to Objection to Petition for Judicial Notice, Exhibit "A" (Approved MPNs) and Exhibit "B" (Attachment A), filed January 5, 2024, pp. 9, 13, EAMS Doc ID 49818482.]

Defendant scheduled a medical appointment for Applicant within seven working days of receiving the claim form and responded promptly to Applicant's counsel's May 1, 2018 letter requesting treatment.

Favours Defendant prevailed

This demonstrated that Defendant did not refuse or neglect to provide medical care, negating the claim of denial of care.

From the decision · page 9In the matter at hand, Defendant received Applicant's claim form via U.S. Mail on April 27, 2018. [See Defendant's Trial Brief, supra at p. 1, ln. 25.] Defendant subsequently mailed out a letter to Applicant on May 7, 2018, noticing a medical appointment scheduled for Applicant to see a doctor on May 21, 2018. [See Defendant's Exhibit "D".] Defendant also mailed out a Delay Letter to Applicant on May 8, 2018. [See Defendant's Exhibit "B".][ Although Petitioner argues, for the first time on appeal, that there is no evidence that the delay and appointment letters were actually served upon Applicant, both letters were properly addressed to Applicant at his address in the Official Address Record and carbon copied to Applicant's attorney of record. This is in compliance with Title 8, Cal. Code of Regs., § 9810. Additionally, Petitioner offered no witness testimony, nor documentary evidence, at the Lien Trial to rebut Section 9810 and show that Applicant never received the two letters.]

Dr. Michaels provided initial psychological evaluation and treatment to Applicant outside the MPN, but his treatment authorization requests were denied by Defendant.

Dr. Michaels' treatment outside the MPN was denied, relevant to the denial of care issue.

From the decision · page 5On May 1, 2018, counsel for Applicant sent a letter to Defendant selecting Dr. Mark Michaels as his primary treating physician pursuant to Labor Code § 4600. [See Lien Claimant's Exhibit "103", PTP Selection Letter, dated May 1, 2018, EAMS Doc ID 42472039.] Also on May 1, 2018, counsel for Applicant sent a second letter to Defendant stating that medical treatment had been requested via the April 20, 2018 opening letter, and that since the employer had failed to schedule a medical appointment in a timely matter, demand was made to authorize medical care recommended by Dr. Michaels, the non-MPN designated primary treating physician. [See Lien Claimant's Exhibit "104", Letter Objecting to MPN Control, dated May 1, 2018, EAMS Doc ID 42472040.]

Dr. Baily was the MPN physician scheduled by Defendant for Applicant's initial evaluation.

Dr. Baily was the MPN physician scheduled by Defendant, relevant to the denial of care issue.

From the decision · page 5On May 7, 2018, Defendant mailed a letter to Applicant and Applicant's attorney of record containing notification that a medical appointment had been scheduled with Dr. Philip Baily for May 21, 2018. [See Defendant's Exhibit "D", Appointment Notice, dated May 7, 2018, EAMS Doc ID 42528947.] Defendant then mailed out a delay letter on May 8, 2018, followed by MPN notice documents on May 15, 2018. [See Defendant's Exhibits "B" and "A", Delay Notice, dated May 8, 2018, and Initial Setup Documents, dated May 15, 2018, EAMS Doc ID 42528945 and 42528944, respectively.]

Labor Code 4616

Labor Code 4616 establishes the requirements for validly establishing a medical provider network (MPN).

The Board found a conclusive presumption of valid MPN formation upon showing administrative director approval.

From the decision · page 7The requirements and regulations for the establishment of a medical provider network are outlined in Labor Code § 4616. Pursuant to Section 4616(b)(1), "upon a showing that the medical provider network was approved...by the administrative director, there shall be a conclusive presumption on the part of the appeals board that the medical provider network was validly formed."

Labor Code 4600

Labor Code 4600 requires employers to provide medical treatment reasonably required to cure or relieve injury effects.

The Board applied this to assess whether Defendant denied or neglected to provide treatment.

From the decision · page 8Medical treatment that is reasonably required to cure or relieve an injured worker from the effects of his or her injury shall be provided by the employer. [See Labor Code § 4600(a).] Should the employer neglect or refuse reasonably to do so, the employer will be liable for the reasonable expense incurred by or on behalf of the employee in providing treatment. [Id., emphasis added; See also, Knight v. United Parcel Service, (Appeals Board en banc) (2006) 71 Cal. Comp. Cases 1423.]

Labor Code 4616.3

Labor Code 4616.3 requires employers to arrange initial medical evaluation and notify employees of MPN existence and rights.

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

From the decision · page 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).]

Labor Code 5402(c)

Labor Code 5402(c) limits employer liability for medical treatment costs until claim acceptance or rejection.

The Board noted this limitation in evaluating the timing of treatment authorization.

Southland Spine and Rehabilitation Medical Center, Inc. v. Workers' Comp. Appeals Bd. (Salas) (2015) 81 Cal. Comp. Cases 88

Southland Spine and Rehabilitation Medical Center, Inc. v. Workers' Comp. Appeals Bd. (Salas) (2015) 81 Cal. Comp. Cases 88 establishes burden of proof for denial of care claims.

The Board applied this to require Petitioner to prove denial of care by Defendant.

From the decision · page 9The real question at issue though is not simply whether a delay existed here. It is whether the delay constituted a denial of care (i.e. did Defendant refuse or neglect reasonably to provide treatment?)[ Additionally, as noted in the Opinion on Decision, the burden of proving the denial of care rests with the applicant, or in this instance, the lien claimant. [See Southland Spine and Rehabilitation Medical Center, Inc. v. Workers' Comp. Appeals Bd. (Salas) (2015) 81 Cal. Comp. Cases 88, 90]. This requires looking further into the facts of the matter. Specifically, Applicant's claim form was sent to the employer via U.S. Mail on April 20, 2018, and not received until April 27, 2018. It was not presented in-person, suggesting possibly that immediate medical attention was not needed. A letter was presumably attached to the claim form requesting medical treatment, but it was not offered into evidence by Petitioner at the Lien Trial. It is unclear as to whether or not it was a form letter and whether or not it

Applicant's counsel's May 1, 2018 letter clearly communicated the need for treatment, prompting Defendant's immediate action to schedule an appointment.

From the decision · page 10Upon receipt of Applicant's counsel's May 1, 2018 letter (presumably received- on or about May 6, 2018, if we allocate five days for mailing), the need for treatment was made quite clear and Defendant took immediate action. Within one working day of the presumed receipt date of the May 1, 2018 letter (i.e. May 6, 2018), Defendant scheduled the initial medical appointment and mailed the letter to Applicant out on May 7, 2018 [It is worth noting that the fact that the appointment was not scheduled to take place until May 21, 2018 (i.e. 15 days later), should not be held against Defendant, since Defendant was responding via Applicant's chosen media for communication (i.e. U.S. Mail) and as such, additional time had to be added on in order to give proper notice of the medical appointment]. This immediate action is not indicative of a refusal or neglect to provide treatment. The opposite, in fact, is true.

No witness testimony or documentary evidence was offered by Petitioner to rebut Defendant's compliance with notice requirements for delay and appointment letters.

From the decision · page 9In the matter at hand, Defendant received Applicant's claim form via U.S. Mail on April 27, 2018. [See Defendant's Trial Brief, supra at p. 1, ln. 25.] Defendant subsequently mailed out a letter to Applicant on May 7, 2018, noticing a medical appointment scheduled for Applicant to see a doctor on May 21, 2018. [See Defendant's Exhibit "D".] Defendant also mailed out a Delay Letter to Applicant on May 8, 2018. [See Defendant's Exhibit "B".][ Although Petitioner argues, for the first time on appeal, that there is no evidence that the delay and appointment letters were actually served upon Applicant, both letters were properly addressed to Applicant at his address in the Official Address Record and carbon copied to Applicant's attorney of record. This is in compliance with Title 8, Cal. Code of Regs., § 9810. Additionally, Petitioner offered no witness testimony, nor documentary evidence, at the Lien Trial to rebut Section 9810 and show that Applicant never received the two letters.]