Edward Bautista injured his ribs, pulmonary system, lumbar spine and right ankle in the course of his employment as a machine operator for Arlon Graphics on April 6, 2014, and he also claimed industrial injury to his psyche and sleep disorder.
He selected orthopedist Dr. Peter Borden as his primary treating physician from within the employer’s MPN. According to the WCJ, the applicant “credibly testified” to symptoms of anxiety which he has verbalized to Dr. Borden who failed to diagnose anxiety or refer applicant for an opinion on the issue of psychological treatment.
Bautista then attempted to utilize the MPN second and third opinion process to obtain a second opinion from a psychologist. The WCJ found that use of the second and third opinion process was not appropriate and that Bautista was ordered to return for an appointment with Dr. Borden and ask Dr. Borden to specifically comment on the need for psychological medical treatment.
Bautista petitioned for Reconsideration/Removal contending that Labor Code section 4616.3 and Rule 9767.7 entitle him to obtain a second opinion from a psychologist he selected in defendant’s Medical Provider Network. Reconsideration/Removal was denied in a split panel decision of Bautista v Arlon Graphics.
The panel majority ruled that under section 4616.3(c) and AD Rule 9767.7, applicant has a right to obtain a second opinion physician in the MPN if he disputes either the diagnosis or the treatment prescribed by the treating physician. In this situation, it is necessary to first obtain a diagnosis from the treating physician regarding the issue in dispute before there can be a basis to exercise the section 46l6.3(h) right to obtain a second opinion. That has no occurred in this case, and the WCJ correctly determined that Dr. Borden should directly “address the issue of a diagnosis of anxiety and whether referral for psychological consult/treatment is reasonable and necessary.”
The dissenting opinion of Commissioner Sweeney disagreed stating “Under section 4616.3(c), applicant has an absolute right to obtain a second opinion from an MPN physician with the education, skills, training and experience to properly evaluate his psychiatric condition. The WCJ’s decision unnecessarily burdens applicant’s right to obtain a psychiatric evaluation by an MPN provider.”