April 28, 20210

The WCAB found that this applicant was not precluded from electing to treat with an MPN provider solely because the doctor’s office was approximately 51 miles from the Applicant’s residence. In Brian Menicucci v. State of California, Department of Transportation 2010 Cal. Wrk. Comp. P.D. LEXIS 431, The WCAB affirmed the WCJ’s Joint Findings and Order of May 11, 2010, the WCAB advised that there is no express statutory or regulatory limitation for what constitutes a “reasonable geographic area”; further, no “reasonable geographic area” can be implied to limit mileage for an applicant’s treatment.

Labor Code Section 4600(c) states in pertinent part that “Unless the [defendant] has established a medical provider network as provided for in Section 4616, after 30 days from the date the injury is reported, the employee may be treated by a physician of his or her own choice … within a reasonable geographic area.” Although Labor Code Section 4600(c) expressly provides for a “reasonable geographic area” limitation for non-MPN treatment, the same does not exist for MPN treatment.

Labor Code Section 4603.5 states that the Administrative Director shall adopt rules to “define” reasonable geographic areas for purposes of Labor Code Section 4600. Consequently, the Administrative Director has adopted Title 8, California Code of Regulations 9780(h), which provides:

(h) “Reasonable geographic area” within the context of Labor Code section 4600 shall be determined by giving consideration to:
(1) The employee’s place of residence, place of employment and place where the injury occurred; and
(2) The availability of physicians in the fields of practice, and facilities offering treatment reasonably required to cure or relieve the employee from the effects of the injury;
(3) The employee’s medical history;
(4) The employee’s primary language.”

Labor Code Section 4603.5 and AD Rule 9780(h) only relate to reasonable geographic limitations for treatment under Section 4600 and not for treatment under the MPN Statutes. Labor Code Section 4616 et seq. , which apply to MPN treatment, provide that an employee has “the right to be treated by a physician of his or her choice” within an MPN, after the first visit with the MPN physician selected by the defendant. Likewise, Administrative Director Rules 9767.6(e) provides that the covered employee may select a physician of his or her choice from within the MPN, after the initial medical evaluation with a MPN physician.

Many of us are familiar with Labor Code Section 4616(c) and Administrative Director Rules 9767.1(a)(21) and 9767.5, which provide geographic accessibility standards for MPN; however, they do not preclude an Applicant from choosing to treat with an MPN physician who is outside of those minimum distances. Further, the Legislature specified that an employee has “the right to be treated by a physician of his or her choice” within an MPN.

While this case did accurately reflect the law, these types of problems can be negotiated with an Applicant’s attorney and should be so negotiated. Such negotiations deal with the extent of mileage reimbursement or for the number of treatments for the applicant. We negotiated this type of issue once by having the carrier provide transportation for the injured worker within a reasonable geographic area. The bottom line is work on developing the most cost-effective means to address each individual case.

By Daisy Morris, Esq., Associate Attorney, Los Angeles Office, April 2021

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