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Non-MPN Medical Reports Are Admissible

On November 14, 2013, the California Supreme Court ruled that medical reports from physicians outside of the employer’s medical provider network obtained by the employee are admissible in proceedings to determine disability benefits. (Valdez v. W.C.A.B and Warehouse Demo Serv. et al., S204387). The non-MPN medical reports are admissible on the issue of compensation for lost wages or earning capacity. Medical reports from non-MPN physicians are not admissible in proceedings to resolve diagnosis or medical treatment disputes (with limited exceptions).

Prior to this recent Supreme Court decision, employers, injured workers, attorneys and judges were without clear guidance on how to reconcile Labor Code § 4616.6 with the pre-SB 863 version of LC § 4605. Even after the Court of Appeal issued its opinion on the issue, and even after the amendment to LC § 4605 following SB 863, there was still controversy on how to interpret the law and uncertainty remained regarding the admissibility of non-MPN medical reports.

Prior to SB 863 LC § 4605 provided:

Nothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physicians whom he desires.

§ 4616.6 provides:

No additional examinations shall be ordered by the appeals board and no other reports shall be admissible to resolve any controversy arising out of this article.

Interpreting these code sections, the Court of Appeal annulled the decision of the WCAB. The WCAB held in two en banc opinions that LC § 4616.6 bars the admissibility of non-MPN reports and nothing in LC § 4605 permits the admissibility of such reports. In overturning the WCAB decision, the Court of Appeal reasoned that LC § 4616.6 only bars the admissibility of “other reports,” such as non-MPN reports, in controversies arising from article 2.3, which pertains to the procedures established to resolve controversies over treatment and diagnosis.

The employer petitioned the California Supreme Court for review, which was granted. Prior to the Supreme Court completing its review of the Court of Appeal opinion, SB 863 was passed. SB 863 amended LC § 4605 which now provides:

Nothing contained in this chapter shall limit the right of the employee to provide, at his or his own expense, a consulting physician or any attending physicians whom he or she desires.

Any report prepared by consulting or attending physicians pursuant to this section shall not be the sole basis of an award of compensation. A qualified medical evaluator or authorized treating physician shall address any report procured pursuant to this section and shall indicate whether he or she agrees or disagrees with the findings or opinions stated in the report, and shall identify the bases for this opinion.

In light of the recent amendment to LC § 4605, the WCAB took the position that the amendment was a codification of the Court of Appeal opinion. The WCAB, thus, recommended to the Supreme Court that it dismiss its grant of review. Yet, the employer maintained that notwithstanding the newly amended LC § 4605, LC § 4616.6 strictly precludes the admissibility of non-MPN reports. To clarify any ambiguity, the Supreme Court did not dismiss its grant of review, but, instead, rendered its opinion on this issue. The Supreme Court ruled that LC § 4616.6 precludes the admissibility of medical reports only in proceedings under article 2.3, which concerns controversies over diagnosis and treatment. Non-MPN reports are admissible in proceedings to resolve disputes over compensation for lost wages or earning capacity.

Although the Supreme Court seemed to suggest that the employee does not have a right to reimbursement for the cost in obtaining these non-MPN reports, that specific issue was not before the Court. Perhaps that will be next area of controversy.