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Elayne Valdez v. Workers' Compensation Appeals Board and Warehouse Demo Services Et

May 29, 2012


Proceeding to review a decision of the Workers' Compensation Appeals Board. Annulled and remanded. Charles Ringwalt, Administrative Law Judge. (W.C.A.B. No.ADJ7048296)

The opinion of the court was delivered by: Zelon, J.

pub. order 6/18/12 (see end of opn.)

Reposted to correct publication order date; no change to opinion text


A divided Workers' Compensation Appeals Board (WCAB) concluded that a medical report is inadmissible if it has been prepared by a person who is not part of a medical provider network established pursuant to Labor Code section 4616 et seq. We granted the petition for a writ of review filed by the employee, Elayne Valdez, because of the importance of the issues raised by the parties. We conclude that the rule of exclusion laid down by section 4616.6 applies only when there has been an independent medical review performed under the authority of section 4616.4. We therefore annul the decision of the WCAB and remand with directions for further proceedings that are consistent with this opinion.


In a fall on October 7, 2009, petitioner Elayne Valdez sustained injuries to her back, hip and neck in the course and scope of her employment by Warehouse Demo Services, insured at that time by Zurich North America and administered by ESIS. At the time, Warehouse Demo Services had established a medical provider network (MPN). Petitioner began treatment with a physician who was a part of that MPN.

On October 23, 2009, petitioner's counsel wrote ESIS stating, among other things, that petitioner "demands a change of physician pursuant to Labor Code Section 4616.3(c)" and that neither petitioner nor her counsel knew the name of the physician within the MPN and also did not know the name of the MPN. The letter asked ESIS to provide these names to counsel.

On October 31, 2009 petitioner stopped treatment with the MPN physician and became a patient of "Advanced Care Specialists," specifically Mark Nario, D.C., at her own expense. Petitioner testified in a hearing before the workers' compensation administrative law judge (WCJ) that she stopped treatment with the MPN physician because it was doing her more harm than good. Her legal counsel referred her to Dr. Nario.

Petitioner testified that she had 24 physical therapy visits with Dr. Nario and approximately 20 acupuncture visits; following that she received decompression. She also saw a chiropractor.

Warehouse Demo Services, Zurich North America and ESIS (collectively respondents) contend that "petitioner did not avail herself of the ability to change her treating physician to another physician within the MPN." Petitioner contends that she was never told "how she could go about changing doctors within the MPN." The WCAB concluded that for "no apparent reason and without regard to following MPN procedures, [petitioner] began treating with Dr. Nario, a non-MPN physician, upon referral from her attorney."

Whether petitioner was actually informed of the MPN and the need to treat with physicians who were a part of the MPN are therefore contested issues. In light of our disposition of the petition, however, we need not address and resolve these issues; they remain to be resolved on remand.


On July 29, 2010, the WCJ made findings that petitioner sustained injuries to her right hip and neck in the course and scope of employment and that she was temporarily disabled from November 2, 2009 through February 10, 2010. The WCJ noted "an initial report of Dr. Nario, 11-2-2009" that estimated 8 to 12 weeks of temporary disability. The WCJ rejected the argument that reports from "non-MPN doctors are inadmissible," ruling that records from "treating doctors have always been admissible for the reason that such doctors are familiar with the patient, generally on a long time basis, and entitled to great weight."

Respondents petitioned for reconsideration. The WCAB granted reconsideration and issued two en banc opinions.

The issue, as formulated by the WCAB, was: "[I]f an applicant has improperly obtained medical treatment outside the employer's MPN, are the reports of the non-MPN treating physician admissible in evidence?"*fn1

The WCAB found that the WCJ "relied on the non-MPN reports of Dr. Nario for this finding [temporary disability] and award of benefits." The WCAB also "assume[d] for purposes of this opinion that defendant had a validly established MPN, and that all proper notices required under the MPN were provided applicant." The WCAB noted that petitioner chose to treat with Dr. Nario, even though she would have had several opportunities to challenge the treatment she was receiving from the MPN physician.

Finding that an employee has the right to seek the opinion of a second and third physician in the MPN in case of a disagreement over diagnosis and treatment and has the further right to seek independent medical review after the third physician's opinion, the WCAB held that Labor Code section 4616.6 "precludes the admissibility of non-MPN medical reports with respect to disputed treatment and diagnosis issues, i.e., 'any controversy arising out of this article.'"*fn2 ...

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