ADJ13620994 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; applicant not entitled to treat outside the MPN at defendant's expense.

Petition for reconsideration of WCJ's Findings and Award denying applicant's request to treat outside the MPN due to alleged delay by defendant; WCJ found delay but no neglect or refusal of treatment. WCAB reviews and denies reconsideration.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Medical treatment / UR / IMRDefendant prevailedbilateral shoulders · neck · back · chest

Applicant failed to prove that defendant's delay in responding to his request constituted a neglect or refusal to provide treatment; no evidence of efforts to obtain treatment after the request; AD Rule 9767.5(g) did not apply as there was no referral to a specialist or request for MAA assistance.

From the decision · page 5Defendant's delay in responding to applicant's single September 21, 2020 letter asking to treat with NMCI is not substantial evidence of a neglect or refusal to provide treatment such that applicant may treat outside the MPN. There is therefore insufficient evidence in the record to find entitlement to treatment outside the MPN at defendant's expense. (See Hamilton v. Lockheed Corp. (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc) [decisions of the Appeals Board "must be based on admitted evidence in the record"]; see also Knight, supra.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Applicant did not provide evidence of any treatment or efforts to obtain treatment after his September 2020 request to treat with NMCI.

Favours Defendant prevailed

Failure to show efforts to obtain treatment undermined claim of neglect or refusal by defendant.

From the decision · page 4The record indicates that applicant was treating regularly in the MPN from August 2019 until January 2020. There is no evidence in the record of any treatment after January 2020. Applicant sent his request to treat with NMCI in September 2020. As acknowledged by the WCJ in her Report, there was a delay by defendant in responding to this request until February 2021. However, applicant did not provide evidence at trial of any treatment (or even efforts to obtain treatment) following his September 2020 request. It is unclear why applicant cites to the AD's

Applicant did not request assistance from the MPN's medical access assistant (MAA).

Favours Defendant prevailed

Lack of request for MAA assistance meant regulatory timeframes for specialist appointments did not apply.

From the decision · page 5Rules regarding assistance from the MPN's medical access assistant (MAA) when there is no evidence that he sought the MAA's assistance since his letter was addressed to the adjuster and makes no reference to the MAA.

Defendant's delay in responding to applicant's request was not substantial evidence of neglect or refusal to provide treatment.

Favours Defendant prevailed

Delay alone, without evidence of denial or neglect, was insufficient to entitle applicant to treat outside MPN.

From the decision · page 5Defendant's delay in responding to applicant's single September 21, 2020 letter asking to treat with NMCI is not substantial evidence of a neglect or refusal to provide treatment such that applicant may treat outside the MPN. There is therefore insufficient evidence in the record to find entitlement to treatment outside the MPN at defendant's expense. (See Hamilton v. Lockheed Corp. (Hamilton) (2001) 66 Cal.Comp.Cases 473, 476 (Appeals Board en banc) [decisions of the Appeals Board "must be based on admitted evidence in the record"]; see also Knight, supra.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Lab. Code § 4600(a)

Employer must provide reasonable medical treatment to cure or relieve from the effects of an industrial injury; if employer neglects or refuses to provide treatment, employee may self-procure at employer's expense.

Applied to determine whether defendant's delay constituted neglect or refusal to provide treatment.

From the decision · page 3Labor Code section 4600 requires the employer to provide reasonable medical treatment to cure or relieve from the effects of an industrial injury. (Lab. Code, § 4600(a).)2 If an employer has established an MPN, an injured worker is generally limited to treating with a physician from within the employer's MPN. (Lab. Code, § 4600(c), 4616 et seq.) However, if the employer neglects or refuses to provide reasonably necessary medical treatment, whether through an MPN or otherwise, then an injured worker may self-procure medical treatment at the employer's

Lab. Code § 4616 et seq.

If employer has established an MPN, injured worker is generally limited to treating within the MPN unless employer neglects or refuses to provide treatment.

Applied to determine applicant's entitlement to treat outside the MPN.

From the decision · page 3Labor Code section 4600 requires the employer to provide reasonable medical treatment to cure or relieve from the effects of an industrial injury. (Lab. Code, § 4600(a).)2 If an employer has established an MPN, an injured worker is generally limited to treating with a physician from within the employer's MPN. (Lab. Code, § 4600(c), 4616 et seq.) However, if the employer neglects or refuses to provide reasonably necessary medical treatment, whether through an MPN or otherwise, then an injured worker may self-procure medical treatment at the employer's

Lab. Code § 5705

Burden of proof rests on party with affirmative of the issue; applicant must show neglect or refusal to provide treatment by defendant.

Applied to assign burden to applicant to prove entitlement to treat outside MPN.

Cal. Code Regs., tit. 8, § 9767.5(g)

AD Rule 9767.5(g) 20-day time limit for MAA to schedule appointment applies only to specialist referrals, not initial appointments with primary treating physicians.

Applied to reject applicant's argument that delay in scheduling initial appointment entitled him to treat outside MPN.

ADJ13620994 · June 28, 2021

What the panel ordered

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