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The low back injury claim is moving along nicely and all medical treatment is being provided through the MPN. Suddenly, a Notice of Representation appears in your mailbox and an ill wind starts to blow. Medical reports from non-MPN physicians begin trickling in and the applicant is now in need of blood work, a sleep study, a psychiatric consultation, and a functional capacity evaluation. Denials start flying and now the claim will inevitably be accompanied by litigation of lien claims. Assuming the employer has met all notice requirements as set forth in Knight v. United Parcel Service, 71 CCC 1423, all non-MPN treatment liens will be defeated with ease.

The notice requirements set forth in Knight are extensive. In fact, there are certainly cases where a review of the claims file will reveal that one or more notice requirement were not met. For instance, many cases contain notices regarding the implementation of the MPN, coverage within the MPN, as well as notice to select a physician of applicant’s choice after the first visit. So far, so good. But where is the notice to the applicant identifying the MPN physician who will treat applicant and the appointment date and time? A savvy lien claimant will use the absence of this notice to overcome the MPN defense. So is that it? The notice was not provided and additional non-MPN treatment is now allowed? Not necessarily.

In the panel decision of Jakes v. State of California, Department of Corrections (July 9, 2010) the court provided:

“Therefore, any defect that may have existed, due to a failure to establish the required notices prior to and at the time of injury concerning defendant’s right to control applicant’s medical treatment through the MPN, was sufficiently cured by proof of its subsequent notice in its correspondence to applicant and to her non-MPN physician after August 8, 2008. The defendant’s lapse of proof of its initial notices at trial does not entitle applicant to continuous self-procured medical treatment at defendant’s expense.” (Emphasis added)

The Court in Jakes disallowed treatment charges for non-MPN treatment after the required notices were sent out. Once the ill wind starts to blow it is extremely important to determine if all MPN notices were properly sent. In the event they were not Jakes allows the employer to regain control of treatment once the MPN notice defects are cured.

[Mr. Van Doren is an associate with Parker, Kern, Nard & Wenzel. He often finds himself wanting to punch holes in the sheet rock of his office due to non-MPN providers. Mr. Van Doren has never actually punched any holes in the sheet rock of his office.]