Parker, Kern, Nard & Wenzel
Legal Updates


PKNW Successfully Defends Against Lien Claimant on MPN Defense

By
Megan K. Lucchesi

PKNW Associate Megan Rogers successfully defended against a chiropractic lien of $9,383.95 utilizing an MPN "serious and chronic condition" defense.

Chiropractor X filed a lien for services totaling $9,383.95. Defendant objected to the services on the basis that Applicant was provided notice of a recently enacted MPN. Upon notice of this MPN, Applicant was to select a treating physician from the MPN list to provide treatment pursuant to her prior future medical Award.

The underlying case was settled on January 22, 2003 by Stipulation with Request for Award in the amount of 45% Permanent Disability based partially on the treatment reports of Chiropractor X. Applicant continued to treat with Chiropractor X as part of her open medical award.

In 2005 Applicant received notice from Defendant of a recently enacted MPN pursuant to Labor Code 4616. Defendant requested that Applicant discontinue treatment with Chiropractor X as he was not an MPN authorized treating physician. Defendant provided Applicant with a list of approved physicians to utilize for continued medical treatment. An objection was also issued to Chiropractor X that he was not an authorized MPN physician and that further treatment would not be reimbursed.

Applicant refused to change treating physicians. Chiropractor X, despite having knowledge of the MPN, continued to provide treatment to Applicant. A hearing was set based on Applicant’s failure to elect an MPN physician. The WCJ then ordered Applicant to select a treating physician from the MPN else she would be required to pay for the services of Chiropractor X from her own pocket.

Also at the time of the hearing, Chiropractor X filed a lien and argued Applicant’s treatment met the "serious and chronic" exception pursuant to Labor Code 4616.2(d)(3)(B) affording Applicant one additional year of treatment until she could successfully be transferred to another physician. Based on Chiropractor X’s contention and Applicant’s plea to continue treatment with Chiropractor X, the WCJ recommended a Panel of Qualified Medical Evaluators be obtained to address the question of whether Applicant’s condition was serious and chronic.

Applicant was evaluated by QME Dr. Bohigian. Dr. Bohigian determined Applicant’s condition was neither serious nor chronic and that transfer to another provider would be safe. Based on this reporting, Defendant once again requested Applicant to transfer to a doctor within the MPN program.

At the following hearing, Chiropractor X lodged an objection to the report of Dr. Bohigian on the basis that it was not received within 30 days of the examination. Defendant responded that Chiropractor X had received Dr. Bohigan’s reporting several months prior and had lodged no objection to the timeliness of the report until the date of hearing. The WCJ felt the timiliness issue was a matter for the Industrial Medical Unit and deferred a decision on timeliness to the Division of Workers’ Compensation Medical Unit.

Chiropractor X contacted the Division of Workers’ Compensation Medical Unit who granted another Panel of Qualified Medical evaluators. A new panel was issued and Dr. Arakelian was chosen. Dr. Arakelian found Applicant to suffer a serious and chronic condition.

The matter was then set for trial based on the conflicting reports of PQME Dr. Bohigan and PQME Dr. Arakelian. Defendants contended Applicant was fully capable of safely transferring to a new physician when the MPN was put into place as confirmed by PQME Dr. Bohigian, that Applicant’s condition did not warrant any additional treatment with Chiropractor X, and that Chiropractor X’s objection to Dr. Bohigan’s reporting was nothing more than doctor shopping.

The WCJ agreed with Defendants contentions and awarded Chiropractor X only $226.45 for the single date of service provided prior to the MPN notice. Chiropractor X petitioned for reconsideration but was denied. A copy of the Opinion and Order Denying Petition for Reconsideration can be found here.