In recent panel decisions the WCAB seems to be less forgiving of litigants who assert what seems to be obvious facts in a case, but then do not submit substantial evidence to prove their assertion. The lesson here it to make sure every essential detail needed to win an issue has been meticulously documented and proven at trial.

In this case, Sherrill Claytor was injured on June 12, 2014 while employed as a doctor’s assistant by Alexander T. Latteri, M.D. She treated with Dr. Spencer as her PTP from 2014 to 2019.

On September 3, 2019, Claytor sent State Fund a letter selecting Scott Small, M.D. as her PTP and request to change her PTP. Dr. Small provided treatment to her from 2019 into 2020 and she also continued to receive treatment from Dr. Spencer from July 2019 to at least December 2019 while also treating with Dr. Small.

On June 1, 2020, Claytor sent a letter to SCIF requesting to treat with Dr. Spencer as her PTP again. On June 15, 2020, SCIF replied stating that it ended the contract with Harbor Health Systems as the MPN administrator of the State Fund MPN by Harbor Health effective July 27, 2020. But it also said that “State Fund will allow you to continue your treatment with your current primary treating physician, treating physicians and/or providers after July 27, 2020.”

The matter proceeded to trial on December 1, 2020 with the sole issue identified as: “Can the Applicant resume treatment with Dr. Spencer as the PTP outside of the MPN.” By the F&O, the WCJ found that applicant is permitted to treat with Dr. Curtis Spencer outside of defendant’s medical provider network (MPN).

The State Fund petition for Reconsideration was denied in the panel decision of Sherrill Claytor v SCIF – ADJ11059073 (January 2023).

If an employer has established an MPN, injured workers are generally limited to treating with a physician from within the employer’s MPN. However, if the employer neglects or refuses to provide reasonably necessary medical treatment, whether through an MPN or otherwise, then an injured worker may self-procure medical treatment at the employer’s expense.

The Appeals Board has held en banc that “a defendant may satisfy its obligation under Labor Code section 4600 to provide reasonable medical treatment by transferring an injured worker into an MPN in conformity with applicable statutes and regulations regardless of the date of injury or the date of an award of future medical treatment.” (Babbitt v. Ow Jing (2007) 72 Cal.Comp.Cases 70, 71 (Appeals Board en banc).)

Here SCIF argues that Claytor was brought back into the MPN when she selected Dr. Small as her PTP and thus, she may not now choose a non-MPN physician absent a denial of care.

To this argument the panel noted that if “Dr. Small is a member of defendant’s MPN (whether the old or new MPN), there may be a viable argument that applicant voluntarily returned herself to the MPN by selecting Dr. Small as her PTP and she may not now choose a PTP outside the MPN absent a denial of care. However, this conclusion presumes that Dr. Small is actually in the MPN, a fact that applicant has not conceded and is not supported by substantial evidence in the record.”

“We do not presume Dr. Small is in the MPN based solely on defendant’s assertion that he is a member of it.“

Defendant contends that applicant’s September 3, 2019 letter selecting Dr. Small as her PTP “should be sufficient for a finding that Dr. Small was in State Fund’s MPN at the time.”

“We disagree that applicant’s September 3, 2019 letter is sufficient to show that Dr. Small is in the MPN.” “Put simply, there is not substantial evidence showing that applicant was treating within the MPN when she requested to have Dr. Spencer resume his role as PTP. There is also no evidence in the record that defendant objected to applicant’s June 1, 2020 request to have Dr. Spencer act as her PTP again.”

“There is substantial evidence to show years of treatment outside the MPN and no effective transfer of care returning applicant to treatment within the MPN. Under these circumstances, applicant is entitled to resume treatment with her non-MPN physician, Dr. Spencer, as her PTP.“

However, the WCJ expressly found that defendant may return applicant to the MPN by complying with the statutory and regulatory requirements for transfer of care and continuity of care policies. Defendant must comply with the process outlined in AD Rule 9767.9(f) for transferring care.

The transfer of care provisions in Rule 9767.9(f) require defendant to make a determination regarding whether applicant’s condition satisfies – or fails to satisfy – one of the four conditions set forth in subsections (e)(1)-(4). This section requires that defendant determine whether applicant has a condition which would allow her to complete treatment with her PTP.

Furthermore, the regulation requires that defendant notify applicant of its determination regarding completion of care. This notification must also be sent to applicant’s PTP, be in English and Spanish, and use layperson’s terms to the maximum extent possible.