Richard Shawl sustained industrial injury while working for Steve’s Automotive as a tow truck driver on March 7, 2001, causing 65% permanent disability without apportionment and a need for future medical treatment. At the time of his award, Jacob Rabinovich, M.D., was applicant’s non-MPN primary treating physician. He continued to serve as applicant’s primary treating physician in the following years and was compensated by defendant for providing reasonable medical care.
The defendant’s MPN was approved by the Administrative Director on December 20, 2011, and the MPN was implemented by defendant effective March 1, 2012. However, defendant did not promptly seek to transfer applicant’s care into its MPN. Instead, as documented in the August 27, 2012 pretrial conference statement,defendant stipulated in writing to Dr. Rabinovich as applicant’s primary treating physician at the pretrial conference. There was no indication of any issue regarding the transfer of applicant’s care into the MPN noted on the record. Applicant continued to treat with Dr. Rabinovich pursuant to defendant’s stipulation following the August 27, 2012 pretrial conference.
The following year, on June 27, 2013, defendant sent applicant letters concerning his transfer into the MPN. No change in applicant’s condition or circumstances was identified by defendant as the reason for seeking to remove Dr. Rabinovich as applicant’s primary treating physician. Applicant continued to treat with Dr. Rabinovich and a dispute arose over defendant’s refusal to authorize medical treatment requested by the physician. On May 15, 2014, applicant filed a Declaration of Readiness to Proceed to Expedited Hearing concerning his continuing treatment with Dr. Rabinovich. The WCJ found that Defendant properly transferred Applicant’s future medical care into Defendant’s Medical Provider Network and that Applicant was to receive further medical care from a physician chosen within Defendant’s Medical Provider Network. After reconsideration, the WCAB reversed in the significant panel decision of Shawl v Steve’s Automotive.
Stipulations made at a mandatory settlement conference are binding upon the assenting parties, and a party may not withdraw from such a stipulation except upon a showing of good cause. Moreover, AD Rule 9797.9(a) expressly recognizes that an employer or insurer may “authorize” treatment by a provider outside of its MPN regardless of whether the injured worker meets one of the four conditions described by the WCJ in her Report that would otherwise require continued treatment by the non-MPN physician. (Cal. Code Regs., tit. 8, § 9797.9(a).). defendant’s August 27, 2012 stipulation to Dr. Rabinovich as applicant’s treating physician served as its authorization for applicant to treat outside the MPN as described in AD Rule 9797.9(a) because defendant’s MPN was already implemented at that time. Defendant has made no showing of a change in case law or judicial interpretation of a statute that would provide “good cause” to relieve it from its stipulation.
The WCAB panel went on to note that “An efficacious physician-patient relationship is an ingredient aiding in the success of medical treatment because it inspires confidence in the patient, and a lawfully established physician-patient relationship should be preserved unless there is a change in the employee’s condition or the treatment being provided is defective or incomplete.” In the absence of a showing of good cause that allows defendant to withdraw from its August 27, 2012 stipulation to applicant’s treatment with Dr. Rabinovich outside the MPN, the refusal to authorize reasonable treatment requested by that physician is fairly construed as neglect or refusal to provide medical treatment that makes defendant liable for its reasonable cost if it is self-procured.
Commissioner Deidra Lowe dissented from the opinion. The Appeals Board held in Babbitt v. Ow Jing (2007) 72 Cal.Comp.Cases 70, 71 (Appeals Board en banc) that the statutory amendments allowing the provision of medical treatment through an MPN could be applied retroactively. There is no valid basis for distinguishing the August 27, 2012 stipulation made by the defendant in this case, from the prior stipulation and award of medical treatment addressed by the Appeals Board in Babbitt. In Babbitt it was held “”Because of the unique aspects of the MPN statutes, we do not find that an employer or insurer must demonstrate that there has been a change of condition or defective or incomplete medical treatment before transferring an injured worker into an MPN.” Thus Commissioner Lowe concluded in the dissent “Defendant properly acted to transfer applicant into its MPN in conformity with applicable statutes and regulations. There is no need for a defendant to show good cause or a change in condition or circumstances to justify the transfer of an injured worker’s medical treatment into an MPN. The decision of the WCJ should be affirmed.”