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Maria Soto sustained an injury to her right shoulder, neck and low back while employed as an assembler by Sambrailo Packaging in Santa Maria. She was referred for treatment to Zenith’s MPN in Santa Maria, Central Coast Industrial Care, where applicant lives and worked. Based upon her request for a referral from a primary treating physician to an orthopedic surgeon, Central Coast referred applicant to two orthopedic specialists in Solvang. Applicant states that the “MPN included 9 orthopedic doctors but only one would treat backs.” Applicant therefore notified Zenith that the MPN did not meet the applicable access standards and selected Dr. Scheinberg, a non-MPN physician located in Santa Barbara, approximately 70 miles away, to treat her shoulder and back. Defendant declined to authorize such treatment outside the MPN.

The parties stipulated that the defendant had a validly formed MPN. At issue was whether the MPN complied with the MPN physician access standards of having three orthopedists willing to treat the applicant. They stipulated there was only one. At a subsequent hearing applicant agreed to treat with an MPN neurosurgeon, Dr. Kissel, but Dr. Kissel declined to accept the applicant.

Zenith contends that that under rural access standards it has 46 physicians within 30 miles or 60 minutes who are fully qualified to act as a primary treating physician in this case (even though they were not orthopedists.)

The WCJ held that Soto was entitled to obtain medical treatment outside defendant’s MPN, finding defendant’s MPN was not in compliance with the applicable access standards by not having three orthopedic specialists willing to treat applicant within the applicable geographic area. On reconsideration, the WCAB reversed in the panel decision of Soto v Sambrailo Packaging; Zenith Insurance Co.

The MPN is required to have “an adequate number and type of physicians . . . to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed.” (Lab. Code, §4616(a)(l ).) The question is whether defendant’s MPN provides the requisite selection of physicians available to assume the role of a primary treating physician. The Legislature intended that an injured worker will be able to select a primary treating physician who has the necessary specialization or expertise in treating her injury. Labor Code section 4616.3(d)(2) provides that “[t]reatment by a specialist who is not a member of the medical provider network may be permitted on a case-by-case basis if the medical provider network does not contain a physician who can provide the approved treatment and the treatment is approved by the employer or insurer.”

A search of Zenith MPN physicians who were available within 60 miles of the employer’s zip code identified 79 providers, and there were 33 physicians within 30 miles. Of those, applicant’s condition could be treated by physicians who wished to practice as a primary treating physician who were familiar with treating the type of injury at issue. Thus, defendant has provided evidence that there are a sufficient number of available physicians within the rural geographic area with specialties capable of providing applicant’s primary care, even if a physician with the specific specialty selected by applicant is unavailable. If applicant requires specialty medical treatment, applicant can be referred to specialist by her primary treating physician selected from within the MPN. If an MPN specialist is not available within the applicable rural access standards, applicant may be referred to a non-MPN specialist. However, applicant has not establish that defendant has violated the applicable rural access standards for selecting her primary treating physician. Therefore, applicant is not entitled to select a physician as her primary treating physician, at defendant’s expense