California WCABPanel decision

ADJ17277232 · May 2, 2024

Petition for Reconsideration granted; original Findings and Order rescinded and substituted; issue of medical-legal evaluation liability deferred; defendant not liable for self-procured treatment outside MPN

Issues decided: 1
Medical opinions weighed: 1
Authorities named: 5
District office: Anaheim

What the panel ordered

Petition for Reconsideration granted, Findings and Order dated February 12, 2024 rescinded and substituted, matter returned to WCJ for further proceedings on medical-legal evaluation issue

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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 / IMRDeferred

The issue of liability for medical-legal evaluation expenses was not decided and deferred for further proceedings.

From the decision · page 5liable for applicant's self-procured medical treatment outside defendant's Medical Provider Network. 2. The issue of whether defendant is liable to lien claimant, Medland Medical, for a medical-legal evaluation and any associated medical-legal expenses is deferred.

Medical treatment / UR / IMRDefendant prevailed

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The facts that decided it

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

Applicant admitted awareness of and agreement to valid MPN in Compromise and Release Agreement.

Favours Defendant prevailed

This admission supports the finding that applicant received notice of MPN, undermining lien claimant's argument of lack of notice.

From the decision · page 3Here, lien claimant alleges that applicant was not served with notice of a MPN. (Petition, p. 4.) However, as evidenced by the notice of MPN dated November 30, 2022 and the notice of treatment within MPN dated December 16, 2022, applicant not only received notice, but authorization for treatment with Dr. Bruce Sands of Concentra. These documents were served prior to applicant's first date of treatment with Omid Haghighinia, D.C.2 Lien claimant argues the November 30, 2022 and December 16, 2022 notices are unable to be authenticated because there are no attached proofs of service. Applicant, however, has admitted to the existence of the MPN.3 Further, we agree with the WCJ that per sections 5708 and 5709, the WCAB has the authority to admit into evidence those documents relevant to any dispute and "best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division." (Report, p. 2.) Additionally, and more importantly, the lien claimant has failed to prove other elements necessary to the establishment of their lien. Indeed, as per the WCJ, lien claimant has "failed to present any evidence that specifically demonstrates neglect or denial of medical care/treatment in this case." As such, lien claimant has failed to meet its burden of proof with respect to reimbursement for treatment under section 4600.

Notices of MPN and treatment within MPN were served prior to applicant's first treatment outside MPN.

Favours Defendant prevailed

This evidence shows applicant had notice and authorization for treatment within MPN, negating claim of improper notice.

From the decision · page 3Here, lien claimant alleges that applicant was not served with notice of a MPN. (Petition, p. 4.) However, as evidenced by the notice of MPN dated November 30, 2022 and the notice of treatment within MPN dated December 16, 2022, applicant not only received notice, but authorization for treatment with Dr. Bruce Sands of Concentra. These documents were served prior to applicant's first date of treatment with Omid Haghighinia, D.C.2 Lien claimant argues the November 30, 2022 and December 16, 2022 notices are unable to be authenticated because there are no attached proofs of service. Applicant, however, has admitted to the existence of the MPN.3 Further, we agree with the WCJ that per sections 5708 and 5709, the WCAB has the authority to admit into evidence those documents relevant to any dispute and "best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division." (Report, p. 2.) Additionally, and more importantly, the lien claimant has failed to prove other elements necessary to the establishment of their lien. Indeed, as per the WCJ, lien claimant has "failed to present any evidence that specifically demonstrates neglect or denial of medical care/treatment in this case." As such, lien claimant has failed to meet its burden of proof with respect to reimbursement for treatment under section 4600.

Lien claimant failed to present evidence of neglect or denial of medical care by defendant.

Favours Defendant prevailed

Without evidence of neglect or denial, defendant is not liable for self-procured treatment outside MPN.

From the decision · page 3Here, lien claimant alleges that applicant was not served with notice of a MPN. (Petition, p. 4.) However, as evidenced by the notice of MPN dated November 30, 2022 and the notice of treatment within MPN dated December 16, 2022, applicant not only received notice, but authorization for treatment with Dr. Bruce Sands of Concentra. These documents were served prior to applicant's first date of treatment with Omid Haghighinia, D.C.2 Lien claimant argues the November 30, 2022 and December 16, 2022 notices are unable to be authenticated because there are no attached proofs of service. Applicant, however, has admitted to the existence of the MPN.3 Further, we agree with the WCJ that per sections 5708 and 5709, the WCAB has the authority to admit into evidence those documents relevant to any dispute and "best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division." (Report, p. 2.) Additionally, and more importantly, the lien claimant has failed to prove other elements necessary to the establishment of their lien. Indeed, as per the WCJ, lien claimant has "failed to present any evidence that specifically demonstrates neglect or denial of medical care/treatment in this case." As such, lien claimant has failed to meet its burden of proof with respect to reimbursement for treatment under section 4600.

The rules the panel named

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

Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588

Lien claimant must prove by preponderance all elements necessary to establish lien (Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588).

Applied to lien claimant's burden of proof.

From the decision · page 3to establish that a failure to provide notice of the MPN resulted in a denial of care].) However, when a lien claimant litigates the issue of entitlement for payment for industrially related medical treatment, the lien claimant stands in the shoes of the injured employee and the lien claimant must prove by preponderance of the evidence all elements necessary to the establishment of its lien. (Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588, 1592 (Appeals Board en banc.))

Labor Code section 4600(a)

Employer must provide reasonable medical treatment to cure or relieve effects of industrial injury; if employer neglects or refuses, injured worker may self-procure treatment at employer's expense (Lab. Code, § 4600(a)).

Applied to determine liability for self-procured treatment outside MPN.

From the decision · page 2DISCUSSION Labor Code section 4600(a)1 requires the employer to provide reasonable medical treatment to cure or relieve from the effects of an industrial injury. If an employer has established an MPN, an injured worker is generally limited to treating with a physician from within that 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 expense. (Lab. Code, § 4600(a); see also McCoy v. Industrial Acc. Com. (1966) 31 Cal.Comp.Cases 93 ["the employer is required to provide treatment which is reasonably necessary to cure or relieve the employee's distress, and if he neglects or refuses to do so, he must reimburse the employee for his expenses in obtaining such treatment"].) Pursuant to section 5705, the burden of proof rests upon the party with the affirmative of the issue.

Labor Code sections 4600(c), 4616 et seq.

If employer has established MPN, injured worker generally limited to treating within MPN (Lab. Code, §§ 4600(c), 4616 et seq.).

Applied to determine treatment limitations within MPN.

From the decision · page 2DISCUSSION Labor Code section 4600(a)1 requires the employer to provide reasonable medical treatment to cure or relieve from the effects of an industrial injury. If an employer has established an MPN, an injured worker is generally limited to treating with a physician from within that 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 expense. (Lab. Code, § 4600(a); see also McCoy v. Industrial Acc. Com. (1966) 31 Cal.Comp.Cases 93 ["the employer is required to provide treatment which is reasonably necessary to cure or relieve the employee's distress, and if he neglects or refuses to do so, he must reimburse the employee for his expenses in obtaining such treatment"].) Pursuant to section 5705, the burden of proof rests upon the party with the affirmative of the issue.

Labor Code section 5705

Burden of proof rests on party with affirmative of issue (Lab. Code, § 5705).

Applied to burden of proof for self-procured treatment liability.

From the decision · page 2DISCUSSION Labor Code section 4600(a)1 requires the employer to provide reasonable medical treatment to cure or relieve from the effects of an industrial injury. If an employer has established an MPN, an injured worker is generally limited to treating with a physician from within that 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 expense. (Lab. Code, § 4600(a); see also McCoy v. Industrial Acc. Com. (1966) 31 Cal.Comp.Cases 93 ["the employer is required to provide treatment which is reasonably necessary to cure or relieve the employee's distress, and if he neglects or refuses to do so, he must reimburse the employee for his expenses in obtaining such treatment"].) Pursuant to section 5705, the burden of proof rests upon the party with the affirmative of the issue.

Labor Code sections 4060(b), 4620(a), 4064(a)

Medical-legal evaluation costs are recoverable if authorized under Labor Code sections 4060, 4620, and 4064.

Applied to issue of medical-legal evaluation expense liability.

From the decision · page 3Labor Code section 4060(b) allows for medical-legal evaluation by a treating physician and section 4620(a) defines a medical-legal expense as "costs and expenses...for the purpose of proving or disproving a contested claim." Section 4064(a) provides that an employer is liable for the cost of a comprehensive medical evaluation authorized under section 4060. Based upon the foregoing, the issue of whether a medical-legal expense is recoverable must be considered by the WCJ in the first instance. Here, the issue has yet to be decided as the WCJ has only addressed the lien on the basis of whether treatment obtained was outside a valid MPN and whether notice of the

What proof carried it

The evidence the panel weighed, by kind.

Documentary evidencefavours Defendant prevailed

Applicant admitted awareness of and agreement to valid MPN in Compromise and Release Agreement.

From the decision · page 3Here, lien claimant alleges that applicant was not served with notice of a MPN. (Petition, p. 4.) However, as evidenced by the notice of MPN dated November 30, 2022 and the notice of treatment within MPN dated December 16, 2022, applicant not only received notice, but authorization for treatment with Dr. Bruce Sands of Concentra. These documents were served prior to applicant's first date of treatment with Omid Haghighinia, D.C.2 Lien claimant argues the November 30, 2022 and December 16, 2022 notices are unable to be authenticated because there are no attached proofs of service. Applicant, however, has admitted to the existence of the MPN.3 Further, we agree with the WCJ that per sections 5708 and 5709, the WCAB has the authority to admit into evidence those documents relevant to any dispute and "best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division." (Report, p. 2.) Additionally, and more importantly, the lien claimant has failed to prove other elements necessary to the establishment of their lien. Indeed, as per the WCJ, lien claimant has "failed to present any evidence that specifically demonstrates neglect or denial of medical care/treatment in this case." As such, lien claimant has failed to meet its burden of proof with respect to reimbursement for treatment under section 4600.

Documentary evidencefavours Defendant prevailed

Notices of MPN and treatment within MPN were served prior to applicant's first treatment outside MPN.

From the decision · page 3Here, lien claimant alleges that applicant was not served with notice of a MPN. (Petition, p. 4.) However, as evidenced by the notice of MPN dated November 30, 2022 and the notice of treatment within MPN dated December 16, 2022, applicant not only received notice, but authorization for treatment with Dr. Bruce Sands of Concentra. These documents were served prior to applicant's first date of treatment with Omid Haghighinia, D.C.2 Lien claimant argues the November 30, 2022 and December 16, 2022 notices are unable to be authenticated because there are no attached proofs of service. Applicant, however, has admitted to the existence of the MPN.3 Further, we agree with the WCJ that per sections 5708 and 5709, the WCAB has the authority to admit into evidence those documents relevant to any dispute and "best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division." (Report, p. 2.) Additionally, and more importantly, the lien claimant has failed to prove other elements necessary to the establishment of their lien. Indeed, as per the WCJ, lien claimant has "failed to present any evidence that specifically demonstrates neglect or denial of medical care/treatment in this case." As such, lien claimant has failed to meet its burden of proof with respect to reimbursement for treatment under section 4600.

Medical recordsfavours Defendant prevailed

Lien claimant failed to present evidence of neglect or denial of medical care by defendant.

From the decision · page 3Here, lien claimant alleges that applicant was not served with notice of a MPN. (Petition, p. 4.) However, as evidenced by the notice of MPN dated November 30, 2022 and the notice of treatment within MPN dated December 16, 2022, applicant not only received notice, but authorization for treatment with Dr. Bruce Sands of Concentra. These documents were served prior to applicant's first date of treatment with Omid Haghighinia, D.C.2 Lien claimant argues the November 30, 2022 and December 16, 2022 notices are unable to be authenticated because there are no attached proofs of service. Applicant, however, has admitted to the existence of the MPN.3 Further, we agree with the WCJ that per sections 5708 and 5709, the WCAB has the authority to admit into evidence those documents relevant to any dispute and "best calculated to ascertain the substantial rights of the parties and carry out justly the spirit and provisions of this division." (Report, p. 2.) Additionally, and more importantly, the lien claimant has failed to prove other elements necessary to the establishment of their lien. Indeed, as per the WCJ, lien claimant has "failed to present any evidence that specifically demonstrates neglect or denial of medical care/treatment in this case." As such, lien claimant has failed to meet its burden of proof with respect to reimbursement for treatment under section 4600.

ADJ17277232 · May 2, 2024

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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