MPN Access Standards If an Employee Chooses to Treat with a Specialist

For a medical provider network (MPN) to be valid, it must offer access and a certain degree of choice for the injured worker. Labor Code 4616(a)(1) states, "The provider network shall include an adequate number and type of physicians, as described in Section 3209.3, or other providers, as described in Section 3209.5, to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged..." It also requires an MPN to include physicians based on "the geographic area where the employees are employed."

Accordingly, California Code of Regulations, Title 8, 9767.5 establishes the access standards for a valid MPN. CCR 9767.5(a) requires an MPN to "have at least three available physicians of each specialty to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged and within the access standards set forth in (1) and (2)." CCR 9767.5(a)(1) requires an MPN to have at least three available primary treating physicians (PTPs) within 30 minutes or 15 miles of each covered employee's residence or workplace. CCR 9767.5(a)(2) requires an MPN to have providers of occupational health services and specialists who can treat common injuries experienced by the covered injured employees within 60 minutes or 30 miles of a covered employee's residence or workplace.

Initially, the Workers' Compensation Appeals Board (WCAB) interpreted CCR 9767.5(a) as requiring an MPN to have three doctors of every specialty available as primary treating physicians within 30 minutes or 15 miles of the applicant's residence or workplace. Since 2016, however, the WCAB has gone away from this interpretation and now holds that if an injured worker wants to be treated by a specialist, the access standards for specialist should apply.

This interpretation of CCR 9767.5 was recently repeated in the case of Murillo v. Western National Group, 2021 Cal. Wrk. Comp. P.D. LEXIS 165. In that case, an applicant treated within a defendant’s MPN with a pain management doctor until the doctor retired. Later, the applicant’s attorney emailed the medical access assistant (MAA) requesting a list of three pain management doctors who were available to serve as PTP. The MAA emailed a list of three doctors within 30 miles of the applicant’s address who were willing to review records to determine if they would treat applicant. The applicant’s attorney then asked the MAA to provide a list of three pain management doctors who were willing to serve as PTP without contingencies.

When the defense attorney replied that it was common for doctors to review records to determine whether they can be designated as PTP, the applicant’s attorney asserted that waiting for the doctors to review records before deciding whether they would serve as PTP meant the doctors were not available. So the applicant's attorney requested an expedited hearing on whether the failure to provide a list of three pain management doctors who were willing to serve as PTP invalidated the MPN and allowed the applicant to treat outside of the network. At the expedited hearing, the defendant offered evidence of more than 20 pain management physicians and 140 orthopedic surgeons within a 30-mile radius of the applicant’s residence.

The WCAB denied the applicant's request to treat outside of the MPN. It explained that because the applicant sought treatment outside of the defendant's MPN, he had the burden of proof. The WCAB noted that although there was inconsistent application of the access standards contained in CCR 9767.5, it found the most recent panel decisions more persuasive on the issue. Specifically, it held that if the MPN has at least three primary treating physicians of any specialty within the 15-mile/30-minute access standard who are available to undertake the role of PTP, the MPN will have satisfied its obligation to provide medical treatment. But because the applicant wanted to have a pain management physician as his PTP, the MPN must provide an adequate selection of specialists within a 30-mile/60-minute radius of the applicant's residence or workplace, or the MPN must permit him to seek such care outside of the MPN.

The WCAB found that it was improper to restrict analysis of the issue to consideration of the three physicians that the MAA identified in its email. It found that the three identified physicians were not the only physicians within the defendant's MPN, that the defendant produced a list of 23 pain management doctors in the MPN within the 30-mile radius requested by the applicant. So it concluded that the applicant failed to meet his burden of proof to establish that there was no properly established MPN.

The WCAB also addressed the applicant's assertion that the defendant failed to comply with CCR 9767.5(g), which states in pertinent part, "[T]he MPN applicant shall ensure that an initial appointment with a specialist in an appropriate referred specialty is available within 20 business days of a covered employee's reasonable requests for an appointment through an MPN medical access assistant." The WCAB explained that § 9767.5(g) applies only when the MAA is scheduling an appointment with a specialist based on a referral, not to the scheduling of an initial appointment with a PTP. Because the applicant was seeking assistance from the MAA for a PTP in pain management, § 9767.5(g) did not apply.

There is no question that an injured worker has the right to choose a PTP within an MPN (CCR 9767.6(e)). An injured worker also may even request to be treated by a specialty physician. If an injured worker wants to treat with a specialist, however,Murilloconfirms the WCAB's current position that an MPN is valid if it meets the 30-mile/60-minute access standards for specialists under CCR 9767.5(a)(2).Murilloalso confirms that injured workers bear the burden of proving entitlement to treatment outside of an MPN. It refused to allow the applicant to treat outside of the MPN just because three of the pain management doctors wanted to review his medical records before deciding to treat him, as there were many other pain management doctors within the access standards of § 9767.5(a)(2). For further discussion on the MPN access standards, seeSection 7.53 Medical Provider Network –– Establishment and Maintenance.