Opinion
OPINION AND DECISION AFTER RECONSIDERATION (EN BANC)
JOSEPH M. MILLER, Chairman.
INTRODUCTION
We granted defendant's petition for reconsideration of the December 9, 2005 Findings and Award of the workers' compensation administrative law judge (WCJ) to further study issues raised by this case regarding a medical provider network (MPN) established by an employer or insurer to provide medical treatment pursuant to Labor Code sections 4616 through 4616.7. Because of the importance of the legal issues presented, and in order to secure uniformity of decision in the future, the Chairman of the Appeals Board, upon a majority vote of its members, assigned this case to the Appeals Board as a whole for an en banc decision. (Lab. Code, § 115.)
We hold that an employer or insurer's failure to provide required notice to an employee of rights under the MPN that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee. In this case, defendant is liable for medical treatment self-procured by applicant because it neglected or refused to provide reasonable medical treatment by failing to provide required notice to applicant of his rights under the MPN. (See Section III at pp. 14-16, infra.)
FACTS
In 1973, applicant was first employed as a delivery person/driver with United Parcel Service (UPS), insured by Liberty Mutual Insurance Company (Liberty). On February 22, 2005, he was delivering a parcel in inclement weather when he slipped on a wet driveway and fell on his right side, injuring his right wrist, arm and shoulder. Industrial injury was acknowledged and he was referred by UPS to a U.S. HealthWorks clinic for examination and treatment. X-rays were taken and medication was dispensed. He was released to light duty for two days and was then returned to full duty. However, his elbow and shoulder symptoms worsened and he returned to U.S. HealthWorks. U.S. HealthWorks referred him to Anthony Zoppi, M.D. for a consultation.
This opinion does not address the reasonableness of medical treatment provided during the first 30 days after the date of injury.
In his April 26, 2005 report to Liberty, Dr. Zoppi provided a summary of his "examination, findings, diagnosis and treatment recommendations" following his "initial orthopedic evaluation" conducted that date "at the request of the treating physician" as authorized by Liberty. During his examination, Dr. Zoppi noted tenderness and restricted range of motion in the wrist, tenderness in the right elbow, and tenderness and "pain with impingement maneuver both Neer and Hawkins" in the right shoulder. He provided a diagnosis of "Right shoulder pain/strain" and "Right wrist scaphoid nonunion, old nonindustrial injury" and described his "consultation with the patient in which the diagnosis was explained in laymen's terms." He noted a need to "see the patient back following the completion of x-rays" of the shoulder to evaluate the potential for "underlying acromioclavicular joint degenerative joint disease" but concluded that applicant "can continue with his usual and customary work activities without the need for work restrictions." He wrote that "Treatment recommendations were discussed and/or communicated with the patient's treating physician."
It appears that copies of Dr. Zoppi's report were sent to "Treating Physician" and "U.S. HealthWorks Medical Group." However, there is no evidence that the report was ever sent to applicant. Nor is there any evidence that either U.S. HealthWorks or Dr. Zoppi was part of an MPN, or that applicant was being provided medical treatment through an MPN. There is no evidence that applicant was notified that an MPN physician had been designated as his primary treating physician. There is no evidence applicant was notified of his right to choose his primary treating physician within the MPN after the first visit. Nor is there evidence of any notice to him of his right to obtain second and third opinions regarding any MPN diagnosis or treatment plan.
Prior to attending his appointment with Dr. Zoppi, applicant had contacted an attorney regarding his claim. In an April 22, 2005 letter, the attorney advised Liberty that applicant was designating the Intercommunity Medical Group (Robert Hunt, M.D.) as his primary treating physician. It appears that at some point Dr. Hunt contacted Liberty to confirm insurance coverage, but was told he would not be paid for any services he provided because he was not in Liberty's MPN.
On May 11, 2005, Dr. Hunt contacted applicant's attorney and advised that he would not treat applicant unless Liberty changed its position and authorized coverage. This is the first evidence of any indication to applicant or his attorney that there was an MPN. That same date, the attorney contacted Liberty by telephone and requested a list of MPN providers.
On May 13, 2005, Liberty telephoned the attorney's office and offered to "go over [the MPN list] on the phone" or to send it by e-mail because it was "about 1,980 pages."
On May 16, 2005, Liberty was informed that the attorney did not have an e–mail address and his staff again asked that the list be sent by regular mail. Liberty responded that the list of MPN providers needed to be requested from the "California Division of Compensation."
On May 19, 2005, the attorney's staff sent a written request for the MPN list to the address provided by Liberty. A woman named Kathy "from California Division of Compensation" telephoned the attorney's staff on May 24, 2005, and told them to contact Liberty for the list of MPN providers. She also provided a telephone number for Liberty.
On May 25, 2005, the attorney's staff left a telephone message requesting a list of MPN providers at the telephone number provided by Kathy. Another message requesting a list of the MPN providers was left by the attorney on May 31, 2005.
On June 1, 2005, the attorney received a return telephone message that Liberty's adjuster was out on medical leave. The attorney that same date sent another written request for the list of MPN providers and left a voice message with another person at Liberty requesting the list. On June 6, 2005, applicant's attorney's staff again directed verbal and written request by facsimile to Chuck Allen at Liberty as follows:
"Please be advised we have requested a copy of the Medical Provider Network List (MPN) from the following, claims adjuster Mr. Frank Quesada on 5/11/05, who advised us we needed to request list from California Division of Compensation. Request was made on 5/19/05, Kathy advised our office to request it from Ann Taintor. Request once again was made on 6/1/05, per Ms. Taintor we now have to obtain it from you. Due to this delay our client is without medical care.
"Request is hereby made we be provided with copy of Medical Provider Network List (MPN) as soon as possible." (Emphasis added.)
Not having received a list of MPN providers, the attorney on June 9, 2005, faxed a letter to Mr. Quesada at Liberty advising that "Pursuant to Labor Code, sections 4600 and 4603.3 (sic) and Section 9783 Of the Rules and Regulations" applicant was selecting his treating physician to be Norwalk Orthopedic Surgery (Jacob Rabinovich, M.D.). Enclosed with that letter was a copy of the attorney's letter to applicant confirming that an appointment was scheduled with Dr. Rabinovich for June 16, 2005.
On June 14, 2005, Dana Previty, a senior claims case manager with Liberty, sent a letter to applicant as follows:
"Recent changes in California workers' compensation law, specifically SB 899, now allow insurers and self-insured employers to direct injured employees to a medical provider network (MPN) for medical treatment. In response to these changes, your employer has implemented the Liberty Mutual UPS Medical Provider Network (MPN) effective, January 1, 2005, for any workers' compensation claims.
"This letter is acknowledgement that you have a workers' compensation injury or illness claim at implementation time of the Liberty Mutual UPS MPN. Our records indicate that your current treating provider, Dr. Robert Hunt is not part of the MPN.
"In order to confirm you continue to receive appropriate medical care please take a few moments to verify the information that best applies to your current treating physician by checking the appropriate box below and returning you response within 10 days…
"□ My current physician is part of the Liberty Mutual UPS MPN. You may continue to treat with this provider. If you need further treatment from another specialist, you and your physician must select a specialist from within the MPN. Contact your employer or the Claims Case Manager if you need assistance in locating an MPN specialist.
"□ My current physician is not part of the Liberty Mutual UPS MPN. You may qualify to continue treatment with your current provider under the Liberty Mutual UPS MPN Transfer of Treatment (TOC) Plan if your condition is acute, serious or chronic, if treatment is for remission, is to prevent deterioration, is a terminal illness or for a scheduled surgery or procedure that will occur within 180 days.
"□ My current physician is not part of the Liberty Mutual UPS MPN network. I do not have any of the conditions above; therefore, I will secure services from another MPN physician. If I need assistance in locating another physician, I will call my employer or Claims Case Manager.
"You must receive confirmation from the MPN to continue using a non-MPN provider. The MPN will contact your non-MPN physician to confirm his/her willingness to continue providing you with treatment under the MPN and the MPN will notify you as to your physician's decision. In the event the physician is not able to continue providing you with medical treatment and services the MPN will advise you to seek treatment from an MPN physician immediately." (Emphasis in original.)
The letter concluded with a request that any questions be directed to the employer or the Claims Case Manager. A copy of the letter was sent to applicant's attorney.
The June 14, 2005 letter from Dana Previty is the first evidence of any written notice from Liberty to applicant or his attorney that refers to the existence of an MPN. However, the letter did not explain where and how applicant was to obtain medical treatment. The letter does not state whether treatment was initiated in the MPN by the employer's referral of applicant to U.S. HealthWorks or by its referral of applicant to Dr. Zoppi. It does not identify any MPN physician that had been designated as the primary treating physician. It does not notify applicant of his right to change the primary treating physician and choose a new primary treating physician within the MPN. It does not notify him of his right to obtain second and third medical opinions within the MPN or of his right to obtain review by an independent evaluator. It does not transmit a list of MPN physicians notwithstanding the numerous requests for the list by applicant's attorney.
On a July 7, 2005, applicant's attorney wrote Frank Quesada at Liberty:
"Please be advised that we are referring our client for medical treatment pursuant to Labor Code section 4600. Our client reported the injury but referral for medical treatment by the employer has been refused and/or neglected.
"Be advised we shall seek penalties for each instance of refusal to authorize or any unreasonable delay in authorizing all medical treatment as indicated by our doctors(s)."
Applicant was seen again by Dr. Rabinovich on July 28, 2005. Following an MRI and EMG and nerve conduction studies, Dr. Rabinovich in his report of July 28, 2005 diagnosed, "1) Tendinitis/impingement syndrome, right shoulder per MRI scan. 2) Bilateral carpal tunnel syndrome, per neurodiagnostic tests. 3) Bilateral ulnar nerve entrapment at the cubital fossae, clinically on the left and per neurodiagnostic tests on the right." Surgery was recommended.
On August 31, 2005, Dana Previty on behalf of Liberty sent a letter to applicant, with a copy to his attorney, as follows:
"This letter concerns the Liberty Mutual UPS Medical Provider Network (MPN). It is our understanding that Robert W. Hunt, MD (Intercommunity Medical Group) and Jacob Rabinovich (Norwalk Orthopedic Surgery) are not participating in the Liberty Mutual MPN.
"As you were aware the MPN was in place and decided to change to a NON UPS MPN physician, we are considering any and all treatment with these doctors self-procured. Therefore, you will be responsible for all medical treatment and service charges.
"It is also important to note that if you elect to continue treating with either of these doctors, you will be responsible for all medical treatment and service charges.
"Please direct any questions regarding this letter to your attorney. Thank you."
Also on August 31, 2005, Dana Previty on behalf of Liberty sent the following letter to both Dr. Hunt and Dr. Rabinovich:
"This letter concerns the Liberty Mutual UPS Medical Provider Network (MPN). It is our understanding that you are not participating in the Liberty Mutual UPS MPN.
"As Mr. Knight was aware the MPN was in place and elected to treat with you anyway, we are considering any and all treatment with you self-procured. Therefore, Mr. Knight will be responsible for all medical treatment and service charges.
"Also be advised that if Mr. Knight elects to continue treatment with you, he will be responsible for all medical treatment and service charges."
The physicians were requested to contact Liberty with any questions.
Also on August 31, 2005, Liberty wrote applicant's attorney:
"This letter concerns the Liberty Mutual UPS Medical Provider Network (MPN).
"I received your letter requesting a copy of the UPS MPN list. The file is very large, therefore I would like to email it to you. I spoke with Irene in your office today and she advised you would be out of the office until September 14, 2005. She was unable to give me your email address. Therefore I have enclosed a copy of all UPS MPN ortho's (sic) as of July 11, 2005.
"Please contact me with you email address so that I may supply you with a copy of the UPS MPN list, should you desire a copy."
Any list of providers enclosed with that letter or otherwise sent by Liberty to applicant or his attorney is not in evidence.
In none of the correspondence described above did Liberty explain where or how applicant was to obtain medical treatment. He was never notified that treatment had or had not been initiated in the MPN. He was never notified that an MPN physician had or had not been designated as primary treating physician. He was never notified of his right to change any designated primary treating physician and his right to select a new primary treating physician of his choice within the MPN. He was never notified of his right to obtain second and third medical opinions within the MPN or of his right to obtain review by an independent evaluator. Instead, Liberty wrote only that the medical treatment he sought was unauthorized, without tendering any information about how he was to obtain treatment for the admitted injury.
On October 7, 2005, applicant filed a Declaration of Readiness to Proceed to Expedited Hearing on the issues of his entitlement to reasonable medical treatment and temporary disability indemnity. Defendant admitted specific injury to applicant's right shoulder, right elbow, right wrist and right upper extremity, and admitted a need for medical treatment. However, defendant denied liability for all treatment self-procured by applicant outside the MPN.
At the hearing on November 29, 2005, the above described materials were received into evidence along with applicant's testimony that he never received "any notice of his requirement to belong to an M.P.N. prior to his injury or after his injury." On December 9, 2005, the WCJ issued his decision, finding that defendant had waived its right to require medical treatment through the MPN, and that it was estopped to deny coverage of medical treatment self-procured by applicant. Applicant was awarded "surgery as recommended by Dr. Rabinovich."
Defendant petitioned for reconsideration of the WCJ's findings and award, contending that "all appropriate notices were sent to the applicant with regard to the Medical Provider Network" and requested that he be directed "to obtain treatment with a doctor on the Medical Provider Network list."
We find on this record that defendant is liable for medical treatment self-procured by applicant because it neglected or refused to provide reasonable medical treatment by failing to provide required notice to applicant of his rights under the MPN.
DISCUSSION
I. An Authorized MPN May Be Used To Satisfy The Obligation Of An Employer Or. Insurer To Provide Reasonable Medical Treatment.
An employer or its insurer is obligated to provide all medical treatment "that is reasonably required to cure or relieve the injured worker from the effects of his or her injury." (Lab. Code, § 4600(a).) "In the case of his or her neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment." (Lab. Code, § 4600(a).) An employer will not be relieved of the duty to furnish medical care absent good cause, and section 4600 has been liberally interpreted in favor of the employee's right to obtain reimbursement. (California Union Ins. Co. v. Industrial Acc. Com. (Mitchell) (1960) 183 Cal.App.2d 644 [25 Cal.Comp.Cases 172]; Simien v. Industrial Acc. Com. (1956) 138 Cal.App.2d 397 [21 Cal.Comp.Cases 10].)
Before January 1, 1976, an employee could not choose a physician to treat an industrial injury if the employer made an unequivocal tender of medical treatment reasonably calculated to cure or relieve from the effects of the injury. However, if the employer had notice of the injury, it was obligated under section 4600 to promptly notify the employee about how and where to obtain medical treatment. The employer could not be passive; instead it had an affirmative duty to be active in offering treatment to the injured worker and in instructing the employee as to which physician to see. (United States Casualty Co. v. Industrial Acc. Com. (Moynahan) (1954) 122 Cal.App.2d 427 [19 Cal.Comp.Cases 8]; Draney v. Industrial Acc. Com. (1949) 95 Cal.App.2d 64 [14 Cal.Comp.Cases 256] (Draney).) The failure to provide that required notice of information was recognized to be neglect or refusal to provide reasonable medical treatment even if the employee did not ask for medical attention before self-procuring care. (Leadbettor v. Industrial Acc. Com. (1918) 179 Cal. 468 [5 I.A.C. 233]; Bethlehem Steel Co. v. Industrial Acc. Com. (Seaquist) (1945) 70 Cal.App.2d 382 [10 Cal.Comp.Cases 171].) If the employer made an equivocal and inadequate offer of medical treatment, the employee could select his or her own physician and obtain reimbursement for the reasonable cost of reasonable self-procured medical treatment pursuant to section 4600. (Voss v. Workers' Comp. Appeals Bd. (1974) 10 Cal.3d 583, 588 [39 Cal.Comp.Cases 56] (Voss); Zeeb v. Workers' Comp. Appeals Bd. (1967) 67 Cal.2d 496, 501-503 [32 Cal.Comp.Cases 441] (Zeeb); McCoy v. Industrial Acc. Com. (1966) 64 Cal.2d 82, 86 [31 Cal.Comp.Cases 93] (McCoy).)
Effective January 1, 1976, section 4600 was amended to provide that "after 30 days from the date the injury is reported, the employee may be treated by a physician of his own choice or at a facility of his own choice within a reasonable geographic area." (Lab. Code, § 4600(c).) In addition, an employee was allowed under certain circumstances to select his or her personal physician to provide treatment during the 30 day period following injury. (Lab. Code, § 4600(d).) An employee also had an essentially unlimited ability to change treating physicians. (Ralphs Grocery Company v. Workers' Comp. Appeals Bd. (Lara) (1995) 38 Cal.App.4th 820 [60 Cal.Comp.Cases 840] (Lara).) Thus, the employee had the choice to select any treating physician, limited only by the employer's right to show good cause in a petition to the Administrative Director (AD) of the Division of Workers' Compensation that an order should issue directing the employee to select a new treating physician from a list of five selected by the employer. (Lab. Code, § 4603; Cal. Code Regs., tit. 8, § 9786.)
With the enactment of Senate Bill 899, section 4600(c) was again amended. It now provides: "Unless the employer or the employer's insurer has established a medical provider network as provided for in Section 4616, after 30 days from the date the injury is reported, the employee may be treated by a physician of his or her own choice or at a facility of his or her own choice within a reasonable geographic area." This amendment added another method by which an employer or insurer could meet its obligation to provide reasonable medical treatment by referring the employee to an MPN. (Lab. Code, §§ 4600(c) and 4616-4616.7; see also Cal. Code Regs., tit. 8, §§ 9767.1-9767.15.).)
An MPN is established by an employer or insurer subject to the approval of the AD. (Lab. Code, § 4616; Cal. Code Regs., tit. 8, § 9767.3.) Among other things, the regulations require that the employer or insurer's application for approval of an MPN include a statement of how the MPN will comply with the "employee notification process" and the "second and third opinion process." (Cal. Code Regs., tit. 8, §§ 9762.1 through 9762.3.) The statute and regulations also impose several other obligations upon both the insurer/employer and the injured worker.
In this case, we specifically address the provisions of section 4616.3 and California Code of Regulations, title 8, section 9767.12(a). Section 4616.3 provides in full:
"(a) When the injured employee notifies the employer of the injury or files a claim for workers' compensation with the employer, the employer shall arrange an initial medical evaluation and begin treatment as required by Section 4600.
"(b) The employer shall notify the employee of his or her right to be treated by a physician of his or her choice after the first visit from the medical provider network established pursuant to this article, and the method by which the list of participating providers may be accessed by the employee.
"(c) If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network."
(Emphasis added.)
California Code of Regulations, title 8, section 9767.12(a) provides in full:
"An employer or insurer that offers a Medical Provider Network Plan under this article shall notify each covered employee in writing about the use of the Medical Provider Network 30 days prior to the implementation of an approved MPN, at the time of hire, or when an existing employee transfers into the MPN, whichever is appropriate to ensure that the employee has received the initial notification. The notification shall also be sent to a covered employee at the time of injury. The notification(s) shall be written in English and Spanish. The initial written notification shall include the following information:
(1) How to contact the person designated by the employer or insurer to be the MPN contact for covered employees. The employer or insurer shall provide a toll free telephone number of the MPN geographical service area includes more than one area code;
(2) A description of MPN services;
(3) How to review, receive or access the MPN provider directory. Nothing precludes an employer or insurer from initially providing covered employees with a regional area listing of MPN providers in addition to maintaining and making available its complete provider listing in writing. If the provider directory is also accessible on a website, the URL address shall be listed;
(4) How to access initial care and subsequent care, and what the access standards are under section 9767.5;
(5) How to access treatment if (A) the employee is authorized by the employer to temporarily work or travel for work outside the MPN's geographical service area; (B) a former employee whose employer has ongoing workers' compensation obligations permanently resides outside the MPN geographical service area; and (C) an injured employee decides to temporarily reside outside the MPN geographical service area during recovery;
(6) How to choose a physician within the MPN;
(7) What to do if a covered employee has trouble getting an appointment with a provider within the MPN;
(8) How to change a physician within the MPN;
(9) How to obtain a referral to a specialist within the MPN or outside the MPN, if needed;
(10) How to use the second and third opinion process;
(11) How to request and receive an independent medical review;
(12) A description of the standards for transfer of ongoing care into the MPN and a notification that a copy of the policy shall be provided to an employee upon request; and
(13) A description of the continuity of care policy and a notification that a copy of the policy shall be provided to an employee upon request."
(Emphasis added.)
Therefore, as relevant here, the employer is required to give the injured employee notice of information about use of the MPN, notice of the right to be treated by an MPN physician of choice after the first visit, notice of the method of accessing the list of MPN providers, and notice of the employee's right to use the second and third opinion process if he or she disputes either the diagnosis or the treatment prescribed by the MPN treating physician.
II. Failure To Provide Required Notice To An Employee Of Rights Under The MPN That Results In A Neglect Or. Refusal To Provide Reasonable Medical Treatment Renders The Employer Or. Insurer Liable For Reasonable Medical Treatment Self-Procured By The Employee.
Employers have long been obligated to provide notice of workers' compensation information to their employees as part of the obligation to provide reasonable medical treatment under section 4600. The duty to provide notice of workers' compensation information begins before the report of an injury. An employer is required to provide new employees with written notice of information about the workers' compensation process and about where and how to obtain medical treatment at the time of hire or before the end of the first pay period. (Lab. Code, § 3551; Cal. Code Regs., tit. 8, § 9880.) The employer is also obligated to post conspicuous notice in the workplace of information about the workers' compensation process and where and how to obtain medical treatment. (Lab. Code, § 3550; Cal. Code Regs., tit. 8, §§ 9881 and 9881.1.) The failure to properly post such notice "shall automatically permit the employee to be treated by his or her personal physician with respect to an injury occurring during that failure." (Lab. Code, § 3550(e).)
Additional notice obligations are triggered at the time of an industrial injury. Within one working day of receiving notice of injury, the employer must provide the employee with a claim form, information about benefits available to the employee and the workers' compensation process. (Lab. Code, §§5401 through 5402; Cal. Code Regs., tit. 8, §§ 9810 through 9812; see also Lab. Code, §§ 138.3 and 138.4.) The failure to properly provide such notice may toll the statute of limitations. (Reynolds v. Workers' Comp. Appeals Bd. (1974) 12 Cal.3d 726 [39 Cal.Comp.Cases 768]; Buena Ventura Gardens v. Workers' Comp. Appeals Bd. (Novak) (1975) 49 Cal.App.3d 410 [40 Cal.Comp.Cases 434].)
In the context of the provision of medical treatment, failure to provide other required notices may be a neglect or refusal to provide medical treatment that renders the employer or insurer liable for self-procured medical treatment. For example, failure to provide an injured worker with adequate notice that a designated alternative physician is the primary treating physician pursuant to section 4601 has been held to be such a neglect or refusal because the employee is not properly informed of where and how to obtain medical treatment. (Pinkerton, Inc. v. Workers' Comp. Appeals Bd. (Samuel) (2001) 89 Cal.App.4th 1019 [66 Cal.Comp.Cases 695]; U.S. Flowers v. Workers' Comp. Appeals Bd. (Carranza) (1997) 62 Cal.Comp.Cases 244 (writ denied).)
Neglect or refusal to provide medical treatment in other situations has been held to render the employer or insurer liable for the reasonable cost of reasonable medical treatment self-procured by the employee. (Voss, supra; Zeeb, supra; McCoy, supra; Draney, supra; County of L. A. v. Industrial Acc. Com. (Allen) (1936) 13 Cal.App.2d 69 [1 Cal.Comp.Cases 127]; see also Braewood Convalescent Hospital v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159 [48 Cal.Comp.Cases 566].)
We hold that an employer or insurer's failure to provide required notice to an employee of rights under the MPN that results in a neglect or refusal to provide reasonable medical treatment renders the employer or insurer liable for reasonable medical treatment self-procured by the employee.
III. Defendant's Failure To Provide Applicant With Notice Of His Rights Under The MPN In This Case Resulted In A Neglect Or. Refusal To Provide Reasonable Medical Treatment.
Defendant contends in its petition that applicant was required to use the MPN because he was provided "appropriate notice" of information. However, as discussed above, a significant part of an employer's obligation to provide reasonable medical treatment includes the responsibility to notify the injured worker about where and how to obtain that medical treatment.
The employee's right to change physicians within an MPN, and the right to be notified how to change physicians, is analogous to the right of an employee who is not being treated within an MPN to change physicians. (Lab. Code, § 4601; Lara, supra.) Moreover, the right of an employee to change physicians within an MPN – perhaps to a physician the employee trusts, or relates better to, or has better communication with, or in whom he or she has more confidence – is a crucial element of an employee's treatment rights under an MPN. The Supreme Court has stated that under section 4600, "a doctor-patient relationship which will inspire confidence in the patient is an ingredient aiding in the success of the treatment…" (Zeeb, supra, 67 Cal.2d 496, 502; Voss, supra, 10 Cal.3d 589.)
In regard to notice, the burden of proof rests on the party holding the affirmative of the issue. (Lab. Code, § 5705.) In the event of a dispute about whether the injured worker was provided notice of rights under an MPN, the employer carries the burden of proof. In this case, defendant not only failed to carry its burden of proving that it provided notice to applicant of his rights under the MPN, the evidence established that its failure to provide such notice was a neglect or refusal to provide reasonable medical treatment rendering it liable for applicant's self-procured treatment.
Applicant testified that he never received written notice about the MPN from defendant and there is no such written notice in evidence. This is contrary to the requirement that an employee be notified "in writing about the use" of the MPN prior to its implementation and at the time of injury. (Cal. Code Regs., tit. 8, § 9767.12(a).) Moreover, applicant was never notified if treatment had or had not been initiated in the MPN. He was never notified that an MPN physician had or had not been designated as primary treating physician. He was never provided notice of his right to be treated by an MPN physician of his choice after the first visit as required by section 4616.3(b). He was never notified of his right under section 4613(c) to dispute an MPN diagnosis and to obtain second and third opinions. The only evidence of notice regarding the "method" for accessing the list of MPN physicians as required by section 4613(b) are the uncertain and confusing references in the June 14, 2005 letter. Despite the June 6, 2005 letter from applicant's attorney notifying Liberty that applicant was without medical care, Liberty provided no guidance on how he was supposed to obtain medical treatment.
Information about how to access medical treatment, how to choose and change physicians, how to obtain independent medical review, and, thus, how to generally and specifically "use" the MPN, are all crucial to the provision of reasonable medical treatment. In this case, defendant failed to tender reasonable medical care through the MPN and failed to provide required notice to applicant of his rights under the MPN. Instead, defendant informed applicant, Dr. Hunt and Dr. Rabinovich that any medical treatment provided by those physicians would be deemed self-procured and applicant would be financially responsible for their charges.
In sum, the record in this case compels the conclusion that defendant neglected and refused to provide reasonable medical treatment by failing to provide applicant with required notice of his rights under the MPN. Because reasonable medical treatment was neglected or refused, applicant is entitled to self-procure reasonable treatment and defendant is liable under section 4600(a) for that treatment.
For the foregoing reasons,
IT IS ORDERED as the decision after reconsideration of the Appeals Board (en banc) that the December 9, 2005 Findings and Award is AFFIRMED.
MERLE C. RABINE, Commissioner, WILLIAM K. O'BRIEN, Commissioner, JAMES C. CUNEO, Commissioner, JANICE JAMISON MURRAY, Commissioner, FRANK M. BRASS, Commissioner, RONNIE G. CAPLANE, Commissioner.