Panel Decision Clarifies Burdens of Proof in MPN Disputes

By John Kamin
Partner, Bradford & Barthel

An applicant failed to prove that a defendant neglected or refused to provide medical care and must continue treating within the defendant’s medical provider network (MPN), according to a new panel decision from the Workers’ Compensation Appeals Board.

The WCAB issued a panel decision in the case of Patricia Lazcano v. Lutheran High School Association, ADJ13514659, ADJ10647989, 6/6/23, which effectively refused to allow applicant to treat outside the defendant’s medical provider network (MPN).

BACKGROUND

The case featured two specific dates of injury with back as an accepted body part, neck as a disputed body part, and other body parts the decision is vague about. The applicant treated with Concentra, then later switched to Kaiser because she believed Kaiser would provide better care.

Kaiser would only treat her for her low back, so she tried to return to Concentra, but they refused to treat her in lieu of the newer second date of injury.

Applicant, now frustrated, stated that had she known that she could have pre-designated a treating physician, she would have pre-designated her personal family doctor or her personal chiropractor. The defendant notified applicant that her personal chiropractor was not in their MPN network. Applicant then sought treatment with IPM Medical Group, a non-MPN doctor whom her attorney had referred her to.

TRIAL

The case proceeded to trial. The trial judge found that defendant failed to notify applicant of her right to pre-designate a physician prior to her work injuries, applicant had been denied care within defendant’s MPN, and that applicant could treat outside the MPN with IPM Medical Group.

RECONSIDERATION

The defendant filed a petition for reconsideration. On reconsideration, the Appeals Board ruled that defendant failed to affirmatively prove that they had advised applicant of her right to predesignate a treating physician before her injuries as required by law.

Furthermore, there was no other evidence of refusal to provide care or neglect to provide care.

With that in mind, the court concluded that applicant did not satisfy her burden to prove that:

• the defendant neglected or refused her medical treatment
• she should be entitled to non-MPN treatment at the employer’s expense.

The board granted the defendant’s petition for reconsideration and stated that the applicant was not entitled to treat outside the MPN.

TAKEAWAYS

There are some key takeaways from this panel decision, which are:

• Defendants always want to keep records that applicant was notified of their right to pre-designate a physician. It is defendant’s burden to prove that applicant was notified of this.
• It is the applicant’s burden to prove that the physicians would have accepted a pre-designation to treat her.
• It is also the applicant’s burden to prove that there was a refusal to provide care for an accepted body part, or neglect to provide care for an accepted body part.
• In this particular case, the panel decision said that there was no evidence of any neglect or refusal to provide care. In hindsight, had the defendant failed to submit RFAs to UR, or had other denials of care, it could have cost them in this case. However, it did not cost them – thus suggesting that timely handling of RFAs for medical treatment can be very important.

During trials on MPN issues, there can be hundreds, if not thousands of documents and subissues at play. Amid that blizzard of documents and issues, it can be easy for the parties to get confused over which party carries various burdens of proof. This decision helps clarify who has burden to prove which issues and has plenty of inferences about how one can satisfy those evidentiary burdens.