With the passage of SB 899, Labor Code 4600 was, once again, amended to shift control of medical treatment to the employer/insurer effective January 1, 2005. (Labor Code Section 4616). This was confirmed in the January 24, 2007 en banc decision in Babbitt v. Golden Eagle Insurance Company 72 CCC 70, in which the WCAB held that an injured worker whose date of injury is prior to January 1, 2005 can be transferred into the MPN thereby satisfying the defendant’s obligation to provide reasonable medical treatment reasoning that SB899 made only a procedural change in the law.
In its en banc decision in Knight v United Parcel Service 71 CCC 1423, the WCAB went through the amendment history of Labor Code 4600 noting that the application for approval of the MPN required a statement of how the MPN will comply with the “employee notification process” and the “second and third opinion process” of AD Rules 9767.1 through 9767.3.
The issue in Knight was whether the employer/insurer had complied with AD Rule 9767.12(a) which requires, among other things, that every covered employee be notified in writing about the use of the MPN: 1) prior to implementation; 2) at the time of hire; or, 3) when transferring into the MPN.
The implementation of notice can be provided by mail, with the pay stub or by electronic means if the employee has access to e-mail (AD Rule 9767.12(c)). The 2nd District Court of Appeal case of Barrett Business Services v. WCAB (Desiderio) 74 CCC 49, held that even if a complete list of MPN doctors is provided on a website, an employee is still entitled to written notice.
All in all, AD Rule 9767.12 contains seven subsections with their own subsections setting forth, in detail, the areas which must be addressed in order to comply with the notification process. If the process is not complied with, the result will be the same as in Knight where the WCAB held that if the failure to provide notice of rights under an MPN results in a neglect or failure to provide medical treatment, the employer/insurer will be liable for reasonable medical treatment self-procured by the employee (Knight supra p.1435).
If you’re buying real estate, it’s location, location, location. If you want to control medical treatment under an MPN, it’s notice, notice, notice.