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On September 9, 2013, applicant, Eun Jae Kim, filed an Application for Adjudication of Claim alleging that she sustained cumulative industrial injury to her back and other body parts while working for B.C.D. Tofu House, Inc. (BCD) as a waitress manager. The employer asserted that upon receipt of the claim a “complete MPN package” was sent to applicant on September 18, 2013. However, on September 19, 2013, the next day, a letter was sent to the employee denying liability “as there is no policy in effect at the time of alleged injuries” and also because there was no “medical proof to substantiate whether your alleged injuries were due to your employment with BCD Tofu House.” Notwithstanding the denial letter, a delay notice was sent to applicant on September 30, 2013. The delay letter identified “Dr. David Heskiaoff” as primary treating physician, but did not schedule an initial medical evaluation. The next day on October 1, 2013 she was “informed that defendant” had selected Richard Feldman, M.D., as her new primary treating physician and had scheduled an initial evaluation for October 23, 2013.

Applicant at some point thereafter identified non-MPN physician Gabriel Rubanenko, M.D., as her primary treating physician. A WCJ found that that an expedited hearing was “not appropriate” to address defendant’s provision of medical treatment through its MPN because the case was not admitted. As a result, the defendant filed a Declaration of Readiness to Proceed on October 11, 2013, with the following statement: “Claim is in delay mode. Applicant has been advised of treatment within the MPN. Defendant is attempting to provide medical tretment [sic] within the delay period, within the MPN. Applicant’s attorney has selected a non-MPN physician as primary treactmng [sic] physician. Defendant seeks an order for treatment and transfer of care into the MPN, and an order regarding no liability for non-MPN treatment with Dr. Rubanenko.”

An expedited hearing was calendered for November 13, 2013, and the attorneys for applicant and defendant appeared at that time. However, the expedited hearing did not go forward. Instead, the case was ordered off calendar by the WCJ, who wrote on the Minutes of Hearing: “As of 11/13/13 defendant confirms that case is not admitted. Not appropriate for [Expedited Hearing].” The employer filed a Petition for Removal. In his Report, the WCJ confirms that the case was taken off calendar “because the [d]efendant confirmed on the day of hearing that it had not admitted or denied liability for the alleged injury, and the 90-day time frame permitted [by section 5402(b)] to make such a decision had not yet elapsed.” The logic was that Rule 10252 of the Rules of the Court Administrator, which provides that a party is entitled to an expedited hearing and decision on the issue of “the employee’s entitlement to medical treatment pursuant to Labor Code section 4600” when “injury to any part or parts of the body is accepted as compensable by the employer.” (Cal. Code Regs., tit. 8, § 10252.) In sum, the WCJ reasoned that Court Administrator Rule 10252 precluded an expedited hearing on the issue of applicant’s medical treatment in the MPN because defendant had not accepted any part of the claimed injury as compensable even though the 90-day period allowed by section 5402(b) to make such a decision had not yet elapsed.

The WCAB granted the Petition for Removal in the case of Eun Jae Kim v B.C.D. Tofu House and Cypress Insurance Company and concluded that the WCJ erred by ordering the case off calendar instead of proceeding with the expedited hearing. The reasoning given by the WCJ in his Report for not conducting an expedited hearing on November 19, 2013 is incomplete because it does not take into account the amendment of section 5502(b)(2) by Senate Bill 863 to provide for an expedited hearing to address the question of, “Whether the injured employee is required to obtain treatment within a medical provider network…” The amendment to section 5502(b)(2) does not take into account the pre-existing Rule 10252, which requires that at least one part of the body be accepted as industrially injured in order to obtain an expedited hearing. However, to the extent the amendment to section 5502(b) is inconsistent with Rule 10252, the statutory provision prevails. The WCJ also did not address Rule 9767.6(c) of the Rules of the Administrative Director, which requires an employer to provide up to $10,000 of medical treatment within its MPN “until the date that liability for the claim is rejected.”

Section 4616.3(a), provides: “If the injured employee notifies the employer of the injury or files a claim for workers’ compensation with the employer, the employer shall arrange an initial medical evaluation and begin treatment as required by Section 4600.” Thus, section 4616.3(a), which is one of the MPN statues, requires a defendant to commence treatment within its MPN when the employer receives notice of the injury from the employee, even if the claim has not been accepted or denied and is within the 90-day delay period allowed by section 5402(b).

Accordingly, the WCAB found that the WCJ erred when he decided not to proceed with the expedited hearing on November 13, 2013 as requested by defendant. Instead, the WCJ should have conducted an expedited hearing to determine whether defendant had met its obligation to provide reasonable medical treatment through its MPN pursuant section 5402(c) and as described in Administrative Director Rule 9767.6(c), or whether defendant was liable for the reasonable cost of medical treatment self-procured by applicant.