VALDEZ v. W.C.A.B. (WAREHOUSE DEMO SERVICES)

Petitioner’s Answer to Petition for Review

Cal.August 20, 2012

LIU.J. $204387 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ~ SUPREME COURT ELAYNE VALDEZ, F | L E D Petitioner, AUG 20 2012 VS. Frank A. McGuire Clerk Deputy WORKERS’ COMPENSATION APPEALS BOARD; WAREHOUSE DEMOSERVICES; ZURICH NORTH AMERICA, ADJUSTED BYESIS(RealParties in Interest); Respondents. ANSWERTO PETITION FOR REVIEW After a Published Decision by the Court ofAppeal, Second Appellate District, Case No. B237147, Annulling an En Banc Decision by the Workers’ Compensation Appeals Board, WCAB Case No. ADJ7048296 Ellen R. Serbin, SBN 128895 John Mendoza, SBN 140007 PERONA, LANGER, BECK, SERBIN & MENDOZA A Professional Corporation 300 East San Antonio Drive Long Beach, California 90807-0948 (562) 426-6155, Fax (562) 490-9823 Ellen@PLBLaw.com Attorneys for Petitioner, ELAYNE VALDEZ S204387 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA ELAYNE VALDEZ, Petitioner, VS. WORKERS’ COMPENSATION APPEALS BOARD; WAREHOUSE DEMOSERVICES; ZURICH NORTH AMERICA, ADJUSTED BYESIS(RealParties in Interest); Respondents. ANSWERTO PETITION FOR REVIEW After a Published Decision by the Court of Appeal, Second Appellate District, Case No. B237147, Annulling an En Banc Decision by the Workers’ Compensation Appeals Board, WCAB Case No. ADJ7048296 Ellen R. Serbin, SBN 128895 John Mendoza, SBN 140007 PERONA, LANGER, BECK, SERBIN & MENDOZA A Professional Corporation 300 East San Antonio Drive Long Beach, California 90807-0948 (562) 426-6155, Fax (562) 490-9823 Ellen@PLBLaw.com Attorneys for Petitioner, ELAYNE VALDEZ TABLE OF CONTENTS Page No. INTRODUCTION 2.00...cceee eee cee eeeee. 1 STATEMENT OF THE CASE .......0000.0 000 ccc cece cece eee. 4 A. Petitioner’s Injury and Undisputed Diagnosis and Treatment ...........0.000 0000 cece cece cence 4 B. Trial and Award of Temporary Disability Benefits........ 5 C, Petition for Reconsideration and En Banc Decisions ...... 6 D. Petition for Writ of Review and Request for Publication ... 8 LEGAL DISCUSSION ......0..00.00 000 cece ccc cece eee, 9 L. BACKGROUND OF THE MEDICAL PROVIDER NETWORK ...........0000 0000 cece cece eee 9 I RESPONDENTS HAVE NOT ARTICULATED ANY LEGITIMATE GROUNDS FOR GRANTING REVIEW 20.creeeee eee eee, 12 fl THE VALDEZ DECISION DOES NOT “THREATEN” OR “UNDERMINE” THE PURPOSE OR INTENT OF THE MPN ... 2...cece eee een 15 IV THE COURT OF APPEAL PROPERLY REJECTED RESPONDENTS’ UNTENABLE POSITION THAT LABOR CODE §4616.6 SHOULD BE CONSTRUED AS A BROAD RULE OF EXCLUSION ..........0.000 000000000... 17 TABLE OF CONTENTS (CONTINUED) Page No. Vv BY ITS PLAIN AND UNAMBIGUOUS LANGUAGE, LABOR CODE§4616.6 ONLY APPLIES TO CONTROVERSIES WHEREIN THE INJURED WORKERIS SEEKING ADDITIONAL TREATMENT WITHIN THE MPN .........0... 2.0000 cee cece eee cece. 18 RESPONDENTS’ REQUEST FOR DEPUBLICATION SHOULD BE REJECTED ............0.0.00 000 ccc ccc e eee. 20 CONCLUSION 2.000000 ccece cece cence. 24 CERTIFICATE OF COMPLIANCE..........0000..0 000 cece eee 22 -ii- TABLE OF AUTHORITIES Page No. Cases Bell v. Samaritan Medical Clinic, Inc. (1976) 60 Cal.App.3d 486 [131 Cal.Rptr. 583] ...................... 2 Brodie v. Workers’ Comp. Appeals Bad. (2007) 40 Cal.4th 1313 [57 Cal.Rptr.3d 644] ..00...000...0.0........ 9 Clifion v Sears Holding Corporation 2012 Cal. Wrk. Comp. P.D. LEXIS 1 .....0000.00.00000000-0-22.. 1] Cruzan v. Director, Mo. Health Dept. (1990) 497 US. 261. cceee cece. l Doe v. City ofLos Angeles (2007) 42 Cal.4th 531 [67 Cal.Rptr.3d 330]. ...........0..22.0-.2... 13 Donaldson v. Lungren (1992) 2 Cal.App.4th 1614 [4 Cal.Rptr.2d 59] .2000..0000000.00..... 13 Guerrero v. Davlyn Investments, Inc. 2010 Cal.Wrk.Comp.P.D. Lexis 47 ......00...00000.-.020 0005. 3, 14 Heath v. Workers' Comp. Appeals Bd. (1967) 254 Cal.App.2d 235 [62 Cal.Rptr.139] .................. 3, 14 Knight v. UPS (2006) 71 Cal.Comp.Cases 1423 2.2.00eeeee. 10 Los Angeles v. Industrial Acci. Com. (1963) 215 Cal.App.2d 310 [30 Cal.Rptr. 75] .....0........000... 3,14 Martinez v. Alert Plating Company, Inc. 2010 Cal.Wrk. Comp P.D. Lexis 108 2.0.0.0... eee ee. 3,14 2 -iii- TABLE OF AUTHORITIES (CONTINUED) Page No. Cases Peak v. Rec Solar 2010 Cal.Wrk. Comp.P.D. Lexis 308 .....000000 0000... 0 cee ee. 3, 14 Perrillo v. Picco & Presley (2007) 157 Cal-App.4th 914 [70 Cal.Rptr.3d 29] .......0.000.00.. 2, 16 Rio Linda Union School District v. Workers’ Comp. Appeals Bd. (2005) 131 Cal.-App.4th 517 [31 Cal.Rptr.3d 789] ........0.....00.0.. 1 Salgado v. County ofOrange 2009 Cal.Wrk. Comp. P.D. Lexis 279 2.000.eee 3,14 Union Lumber Co. v. Industrial Acci. Com. (1932) 124 Cal.App. 584 [2 P.2d 1047] 2.000.000.0000 eee. 3, 14 Vasquez v. State ofCalifornia (2008) 45 Cal.4th 243 [85 Cal.Rptr.3d 466] ......00.00...0...0..0.. 2 Codes, Statutes and Other Authorities Cal. Code Regs., tit.8, §35(a)(1) 0...cece eee. 16 Labor Code §3202 2.0... ccc ccc ccc cnc e ect e eee nenee 15 Labor Code §4060(b) .. 0...ceceeee eee ee 16 Labor Code §4061(b) 20.6...tcece eee. 16 Labor Code §84061.5 20...ccc cece eee eens 16 Labor Code §84062(a) ... 0.0...ecece. 16 Labor Code §4062.2 0...cccccc cece e ee eees 6 -iv- TABLE OF AUTHORITIES (CONTINUED) Labor Code §4062.3(a) 2.00... 00k ccc cece neces 16 Labor Code 84600 . 0.0.0... 00 ccc cence eee ete e cess 9 Labor Code §4605) «1... ookeee 1-3, 7, 10, 13, 16, 17, 20 Labor Code §4616(a)(1) 2... 0...eeee eee 9,11 Labor Code §84616(b) .. 0...ccc cee eee c cece cece, 10 Labor Code S4616.1(C) 2...ccceee cece neee 11 Labor Code §4616.3 20...cccccc cece eee eeeee 19 Labor Code §4616.3(b) 0.0.0... ccc cece ect e eee eee, 10 Labor Code §4616.3(C) ... 0... cece eee eee ee eae 4,11 Labor Code §4616.4 2...ceeeee 9, 12, 19, 20 Labor Code §4616.4(b) 20.0...ccc cece eeae 12,19 Labor Code §4616.6 ........ 0.000000 ce ee ee .. 3, 7-9, 12, 14, 17-20 Labor Code §§4616-4616.7 20... 0.00 ccc cece eee eee. 1,9, 17 Labor Code §5703 1... 0... ccc cee ccc eee e eee eeas 14 Labor Code §5703(a) 0.00.00. ccc cc cence 1-3, 7, 13, 14, 20 Labor Code §5703(b) 0...ccc cece erect eeeneeey 8 INTRODUCTION This case involves an injured worker’s “undoubted”right under Labor Code §4605to select and pay for a physician of her own choice and the right of Worker’s Compensation judges (““WCJ’) under Labor Code §5703(a) to consider medical reports obtained by non-MPNphysiciansin awarding compensation for temporary or permanentdisabilities. By their petition, Respondents urge this court to rewrite Article 2.3 of the Worker’s Compensation Act (“Act”), the section pertaining to “Medical Provider Networks” (“MPN”) (Labor Code §§4616-4616.7) to eliminate the — constitutional right of an injured worker to pay for and make her own medical treatment decisions and to bar the WCJ’s from considering non- MPN medical reports under any circumstance. (See Cruzan v. Director, Mo. Health Dept. (1990) 497 U.S. 261, 269.' ) The Legislature is presumed to have knownofthe existence of Labor Code §§4605 and 5703(a) when it overhauled the Act in 2004 and enacted the MPNstatutory scheme. (Rio Linda Union School Dist.v. Workers’ Comp. Appeals Bd. (2005) 131 Cal.App.4th 517, 530 [31 Cal.Rptr.3d 789].) This Court has cautioned against reading into a statute language it does not contain or rewriting a statute to conform to an assumed 'A copy of the Cruzan decision is attached as Exhibit “16,” 152-195 to the Petition for Writ of Review. -|- intention which doesnot appear from its language. (Vasquez v. State of California (2008) 45 Cal.4th 243, 253 [85 Cal-Rptr. 3d 466]; Doev. City of Los Angeles (2007) 42 Cal.4th 531, 545 [67 Cal.Rptr.3d 330].) Had the Legislature intendedto repeal or modify Labor Code §§4605 or 5703(a),it could have easily doneso;it did not. Noprovision of the MPN prohibits an employee from selecting and paying for her own doctor. Our courts have consistently recognized that Labor Code §4605 allows “any injured employeeis free to seek medical treatment and/or consultation in addition to, or independentof, that for which his employeris responsible.” [Emphasis added.] (Bell v. Samaritan Medical Clinic, Inc. (1976) 60 Cal.App.3d 486, 490 [131 Cal.Rptr. 583].) Labor Code §4605 “ensures that employees are notforced to accept treatmentor advice from a physician selected by the employerifthey wish to go outside the workers' compensation system at their own expense.” (Perrillo v. Picco & Presley ( 2007) 157 Cal.App.4th 914, 936 [70 Cal.Rptr.3d 29].) It can be inferred that the Legislature left this statute alone since it actually promotes the cost-saving goals of the 2004 Act by having the injured employee, not the employer, bear the cost of medical treatment. Furthermore, no language within the MPN bars an injured worker from submitting reports prepared by non-MPNphysicians to determine benefits. It is well-settled that the report of a non-MPNtreating physician may be admitted into evidence under Labor Code §5703(a) to resolve medical-legal disputes [entitlement to benefits]. The appellate courts and the WCABhaverepeatedly affirmed this rule of law from 1932 to the present. (See Union LumberCo. v. Industrial Acci. Com. (1932) 124 Cal App 584, 588 [2 P2d 1047]; Los Angeles v. Industrial Acci. Com. (1963) 215 Cal.App.2d 310, 313 [30 Cal Rptr 75]; Heath v. Workers’ Comp. Appeals Bd. (1967) 254 Cal.App.2d 235, 240 [62 Cal.Rptr.139]; Salgado v. County ofOrange, 2009 Cal.Wrk. Comp. P.D. Lexis 279; Guerrero v. Davlyn Investments, Inc., 2010 Cal.Wrk. Comp. P.D. Lexis 47; Martinez v. Alert Plating Company, Inc., 2010 Cal.Wrk. Comp. P.D. Lexis 108; and Peak v. Rec Solar, 2010 Cal.Wrk. Comp. P.D. Lexis 308.) Applying the statutory rules of construction, the Second District Court of Appealin Valdez correctly opined that Labor Code §4616.6, on its face, is not a general rule of exclusion butinstead, is limited to cases where there has been an independent medical review within the MPN. (Opinion,pg. 8-9.) In sum, the Second District Court of Appeal has correctly interpreted Labor Code §§4605 and 5703(a) in affirming the mandated right of an injured employee to self-procure medicaltreatmentand the discretion of the WCJ to consider non-MPN medical reports in determining compensation. A review of this decision is unnecessary to secure uniformity of decision or to settle an important question of law. Accordingly, Respondents’ petition for review should be denied. STATEMENT OF THE CASE A. Petitioner’s Injury and Undisputed Diagnosis and Treatment On October 7, 2009, Petitioner, Elayne Valdez sustained work- related injuries to her back, hip and neck, while employed as a product demonstrator by Warehouse DemoServices. Petitioner sought treatment from a physician within the Respondents’ MPN. (Exhibit “1,” 1:21-25, 3:4- 21.) On October 23, 2009,Petitioner, through her attorney, made a demandfor a change oftreating physician pursuant to Labor Code §4616.3(c). In that same correspondence the Respondents were advised that the namesofthe physicians within the MPN were not knownto Petitioner or her attorneys. (Exhibit “2.”) Petitioner's attorney requested a list of the namesofthe physicians available within the MPN. Thereafter, Respondents failed to provide the requested MPNlist and failed to make the requested change ofMPN physician. On October 23, 2009, Petitioner, through her attorney, senta letter to ESIS notifying it that she was changing primary treating doctors to “Advanced Care Specialists (but not limited to) Mark Nario, D.C.” In addition, the letter pointed out that the Respondentshad failed to comply with MPNnotice requirements. (Exhibit “2,” 6-7.) On October 31, 2009, Petitioner stopped treating with the Respondents’ MPN doctorand elected to self procure treatmentoutside of the MPN becauseshe felt her hip wasnot getting better and the treatment was “doing her more harm than good.” (Exhibit “1,” 3:20-25, 4:4-5.) Morever, Respondents never told her how she could go about changing doctors within the MPN. (Exhibit “1,” 4:6-7.) Dr. Nario evaluated Petitioner and prescribed treatment including physical therapy. (Exhibit “1,” 4:8-10; Exhibit “3,” 8-10.) He opined that the Petitioner was temporarily disabled. (Exhibit “3,” 10.) B. Trial and Award of Temporary Disability Benefits ESIS refused to comply with the findings of Dr. Nario and denied Petitioner temporary disability benefits. As a consequence,the issue of whetherPetitioner wasentitled to temporary disability benefits wentto trial on July 22, 2009. Petitioner offered Dr. Nario's medical report to substantiate her claim for temporary disability. (Exhibit “1,” Applicant’s 4; Exhibit “4,” 13-21; Exhibit “5,” 26; and Exhibit “6,” 27-32.) Respondents presented no evidence to contest Dr. Nario’s findings. Labor Code §4062.2 sets forth the manner in which a party may object to the reports of treating physicians through the Qualified Medical Evaluator (QME)process. Respondents failed to avail themselves to the QME process. In the end, the WCJ awarded Petitioner temporary disability benefits based on Dr. Nario’s medicalreport. The WCJ rejected Respondents’ contention that reports of non-MPNdoctors were inadmissible, observing that “[rJecords from treating doctors have always been admissible for the reason that such doctors are familiar with the patient, generally on a long time basis, andentitled to great weight.” (Exhibit “6,” 27-32.) C. Petition for Reconsideration and En Banc Decisions Respondentsfiled a petition for reconsideration from the WCJ’s decision on the groundsthat the WCJacted in excess of his powers by considering a non-MPNreport on the issue of temporary disability. (Exhibit “7,” 34-40.) An en bane Workers' Compensation Appeals Board (“WCAB”) grantedthe petition for reconsideration andruled that the report of Dr. Nario, a non-MPNtreating physician was inadmissable under Labor Code §4616.6 and rescinded the award of temporary disability benefits. (Exhibit “9,” 50-51; Exhibit “10,” 52-68.) Two of the seven Commissioners filed dissenting opinionsas to the WCJ’sdiscretion to consider non-MPNdoctors’ reports to determine the issue of compensation. As one Commissioner observed, under Article 2.3, MPNdoctors have exclusive control over issues of diagnosis and treatment. To extend that control to issues of compensation, the Commissioner opined, “goes beyond the MPNstatutory mandate and gives no effect to sections 4605 and 5703(a).” (Exhibit “10,” 63:3-27, 64-68:1-7.) Because the WCABruled on matters notraisedattrial, the Petitioner was newly aggrieved andfiled a petition for reconsideration of the en banc decision which was granted. (Exhibit “11,” 69-92.) In its second en banc decision, the WCABreaffirmedits prior holding that reports of non-MPN treating physicians are inadmissible. (Exhibit “14,” 131-133; Exhibit “15,” 134-151.) The same two Commissioners, once again,filed dissenting opinions, rejecting the majority’s position that non-MPN medical reports are inadmissible under any circumstances. (Exhibit “15,” 147:3-26, 148- 151:1-26.) The dissent observed: While Legislative intent is not always apparent, it strains credulity to assumethat in enacting section 4616.6, the legislature intended that by exercising the right to obtain medical treatment at their own expense, injured workers would preclude themselves from receiving benefits for their industrial injuries. Moreover, the majority has removed the discretion of the WCJ to admit the reports ofnon-MPN treating physicians in all cases and circumstances where there is a validly established and properly noticed MPN, apparently creating forthe first time an exception to section 5703(b), which was enacted in 1937. (Exhibit “15,” 150:19- 24.) D. Petition for Writ of Review and Request for Publication Petitioner filed a timely petition for writ of review which was granted. The Second District Court of Appeal annulled the en banc decision of the WCABand heldthatthe rule of exclusion laid down by Labor Code §4616.6 under the MPNstatutes applies only when there has been an independent medical review pursuant to Labor Code §4616.4. (Opinion, pg. 8.) Upon the request of the Petitioner and amicus California Applicants’ Attorneys Association, the decision in Valdez was published. LEGAL DISCUSSION I BACKGROUND OF THE MEDICAL PROVIDER NETWORK In 2004, the MPNstatutes (Labor Code §§4616-4616.7) were enacted as part of a comprehensive reform of the workers’ compensation system. The MPNstatutes which are found under Chapter 2, Article 2.3 of the Act, authorize an employer to create networks or MPN’s composed of doctors chosen exclusively by the employeror its insurance carrier. (Labor Code §§4600, 4616(a)(1).) The goal of the MPNstatutes was to save costs by requiring an injured employeetreat at the employer’s expense within the MPNonly. (See Brodie v. Workers’ Comp. Appeals Board (2007) 40 Cal.4th 1313, 1329 [57 Cal.Rptr.3d. 644].) The MPNstatutes describe the circumstances under which the employer may beheld liable for the medical costs of the diagnosis and treatment of an injured employee. Thesestatutes expressly provide that an employer may control an injured worker’s treatment only ifthe injured workertreats within the employer-controlled MPN. (Labor Code §4616.3(b).) With a few noteworthy exceptions, the MPNstatutes relieve an employer from paying for the cost of medical treatmentif an injured worker elects to treat with a physician of her own choice outside of the MPN. Labor Code §4605 expressly allows an injured employee to self-procure medical treatment regardless of whetherthere is a validly established and properly noticed MPN. Likewise, an employee hasthe rightto treat outside of the MPN with a physician of her own choice when an employerdoes not create a valid MPNorifthe employerfails to meetthe statutory notice requirements(failing to place the employee on notice of the MPN and failing to provide the employee with instructions on how to use the MPN). (Knight v. UPS (2006) 71 Cal.Comp.Cases 1423, 1430-1434.) The rules for creating an MPNarerather lax. An employeris permitted to maintain an MPN evenifthe MPN does not meet the statutory requirements for its creation or existence. Labor Code §4616(b) provides that where the Administrative Directorfails to approve the MPN within sixty days of the employer’s application, the MPN is deemed approved and -10- is added to the Administrative Director’s official MPN list. A WCJ may simply take “judicial notice” of the MPN list regardless of whether the MPN meets the minimum requirement under the Act. (See Clifton v. Sears Holding Corporation , 2012 Cal.Wrk. Comp. P.D. LEXIS1, 15.) Under the MPN’sstatutory scheme, the employer and its insurer hand picks each physician contained in the MPN. The employer’s insurer may removephysicians from its MPN at any time and without cause (even after the employee has commenced treatment with an MPN physician) (Labor Code §4616.1(c)). Furthermore, despite the statute’s “goal” concerning the composition of the doctors within the MPN,there is no legal requirement that the employer’s insurer select any doctor with whom it objects. (Labor Code §4616(a)(1).) For an employee whostays within the MPN andis treated at the employer’s expense, the MPN statutes contains a multi-level dispute resolution process to address disputes either with diagnosis or treatment [not temporary or permanentdisability]. (Labor Code §4616.3(c).) The MPNallowsan injured employee to obtain a second or even third opinion from another of the employer’s doctors within the MPN network. (/d.) If the second and third opinions are unacceptable, then employee mayapply for an “independent medical review” (“IMR”) to be conducted by a doctor -|1- selected by the medical director. (Labor Code §§4616.4(b).) The IMR is the last word on the nature and extent of the employer’s liability to furnish care within the MPN only. (Labor Code §§4616.4 and 4616.6.) In sum, the MPN statutory scheme only applies when an injured workerelects to treat at the employer’s expense. Rather than a general rule of exclusion, the limitation on the use of “other reports” under Labor Code §4616.6 pertains exclusively to controversies arising out of the MPN. Contrary to the Respondents’ contention, the MPN statutes do not preclude an injured worker from electing to self-procure medical treatment or bar the use of medical reports prepared by non-MPN physiciansto determine eligibility for benefits. Excluding all non-MPN medical reports would give the employer an unfair advantage in collecting medical evidence from physicians of its own choice while barring the injured worker from doing likewise. II RESPONDENTS HAVE NOT ARTICULATED ANY LEGITIMATE GROUNDS FOR GRANTING REVIEW Respondents contend that the Opinion merits review because the MPNwasdesigned to be the “exclusive means of diagnosis and treatment -12- with regard to workers’ compensation benefits” and was meantto bar an injured worker from offering any outside “doctor-advocate” reports for any reason. (Petition, pgs. 3-4.) Their contention is without merit. They have misconstrued the MPNstatutes and interpreted Labor Code §§4605 and 5703(a) in such a mannerthat would render the plain and unambiguous language of these statutes meaningless and inoperable. The MPN hasnothing to do with medical treatment procured atthe injured worker's expense. When our Legislature passed the MPNstatutes, it left Labor Code §4605 undisturbed. This section providesthat “[nJothing contained in this chapter shall limit the right of the employee to provide, at his own expense, a consulting physician or any attending physician whom hedesires.” [Emphasis added.] “This chapter”refers to Chapter 2 of Division 4, Article 2 of the Act. The MPNstatutes are found undera different Article, Article 2.3 of Chapter 2. Labor Code §4605is a statutory restatement ofan employee's constitutional right to direct and control her own medical treatment decisions without encumbrance, at the employee ’s own expense. (Donaldson v. Lungren (1992) 2 Cal-App.4th 1614, 1620 [4 Cal.Rptr.2d 59]; Cruzan, 497 U.S. at 269). Respondents have not cited any authority for their assertion that the MPNstatutes mandate that an injured employeetreat -]3- exclusively within the employer-controlled MPNat the risk of being denied all benefits under the Act. Similarly, the Legislature did not modify or repeal Labor Code §5703(a) which providesin part that “[t]he appeals board mayreceive as evidence either at or subsequentto a hearing, and useas proof of anyfactin dispute. . (a) Reports of attending or examining physicians.” Since 1932, numerousdecisions have held that the reports of treating physicians are admissible in workers’ compensation cases to resolve medical-legal disputes. (Union Lumber Co., 124 Cal.App. at 588; Los Angelesv. Industrial Acci. Com., 215 Cal.App.2d at 313; Heath ,254 Cal.App.2d at 240.) The application of §5703 has not changedsince the passage of SB 899 and the enactment ofLabor Code §4616.6. Several WCAB decisions have continued to allow the introduction of reports of non-MPN physicians. (See Salgado, 2009 Cal.Wrk. Comp. P.D. Lexis 279; Guerrero, 2010 Cal.Wrk. Comp. P.D. Lexis 47; Martinez, 2010 Cal.Wrk. Comp P.D. Lexis 108; and Peak , 2010 Cal.Wrk. Comp.P.D. Lexis 308). Accepting Respondents’ assertion that Labor Code §4616.6 presents a general rule of exclusion would mean that relevant medical reports prepared by a qualified medical examiner, agreed medical examiner, -14- independent medical examinerortreating physicians through group health plans(i.e. Kaiser) outside the MPN would all be disregarded in determining eligibility for compensation under the Act. In the eventof a related third- party claim, the injured worker would be prevented from offering expert medical opinions concerning causation or to rebut defenses raised by the employer simply because these doctors were outside the MPN. Such a narrow interpretation would lead to an absurd result - denying benefits to injured workers on accepted claims. (Labor Code §3202.) il THE VALDEZ DECISION DOES NOT “THREATEN” OR “UNDERMINE” THE PURPOSE OR INTENT OF THE MPN In their petition, Respondents argue that the Valdez Opinion “threatens” and “undermines” the MPN statutory scheme. This Court should disregard such hyperbole becauseit is nonsensical. The MPNremains the exclusive mechanism for medical treatmentat the employer’s expense (under a properly noticed and validly established MPN.) The MPN,as enacted, controls the medical costs incurred by an employerfor the diagnosis and treatment of an injured worker. Thereis no provision within the MPNstatutes that bars an injured employee from -|5- treating outside the MPN atno cost to the employer, the ultimate cost- saving measure. (See Labor Code §4605; Perrillo, 157 Cal.App.4th at 936.) Furthermore, the MPNstatutes do not give the employer the exclusive right to collect medical evidence andto barall other relevant medical reports. As the Court of Appeal astutely noted, a rule excludingall medical reports for the “sole reason that the report was not prepared by an MPNphysician would eviscerate the right guaranteed by section 4605.” (Opinion,pg. 11.) Furthermore, numerousstatutes and regulations within the Act expressly permit the use of a report prepared by a treating physician in deciding medical-legal disputes. A treating physician is not defined exclusively as a physician within the employer-controlled MPN. (See Cal. Code Regs., tit. 8, Rule 35(a)(1), Labor Code §§ 4060(b), 4061(b), 4061.5, 4062(a), 4062.3(a), 4064(d), 4610(e), and 4628(a) and(e). It is axiomatic that the vast majority of injured workerspreferto treat within the MPNat the expense of the employer. The MPNstatutory scheme, however, has not eliminated an injured employee’s constitutional and statutory right to procure medical treatment at their own expense. -16- IV THE COURT OF APPEAL PROPERLY REJECTED RESPONDENTS’ UNTENABLEPOSITION THAT LABOR CODE §4616.6 SHOULD BE CONSTRUED AS A BROAD RULE OF EXCLUSION Labor Code §4616.6 providesthat “[n]o additional examinations shall be ordered by the appeals board and no other reports shall be admissible to resolve any controversy arising out ofthis article.” (Emphasis added.) The Court of Appeal correctly interpreted the phrase “out ofthis article” as specifically referring to Article 2.3 [Labor Code §§4616- 4616.7]. As the Court of Appeal observed “[i]t does not makesense. . .to construe section 4616.6 as a general rule of exclusion, barring any use of medical reports other than those generated by the MPN. Section 4616.6 states nothing of the sort. If the Legislature intended to excludeall non- MPN medicalreports, the Legislature could have said so, it did not.” (Opinion,pg. 8.) Respondents’ contention that the limitations under Labor Code §4616.6 reach beyond the MPN,is simply not supported by the plain and ordinary meaning of the statute. Section 4616.6 does not address reports prepared by treating physicians under Labor Code §4605 or medical reports -|7- used to determine benefits. Section 4616.6 applies exclusively to the MPN and the procedure for resolving disputes concerning diagnosis or treatment within the MPN only. Its sole purposeis to limit the number of opinions an injured worker may obtain to establish employerliability for additional medical treatment within the MPN. To accept the Respondents’ reading of the statute would require this Court to ignore the plain and ordinary meaning of §4616.6 and to rewrite the statute based on Respondents’ speculation as to the Legislature’s “inferred intent.’ Such a task is beyondthe role of the courts. Vv BY ITS PLAIN AND UNAMBIGUOUS LANGUAGE, LABOR CODE §4616.6 ONLY APPLIES TO CONTROVERSIES WHEREIN THE INJURED WORKERIS SEEKING ADDITIONAL TREATMENT WITHIN THE MPN In reviewing §4616.6, the Second District Court of Appeal properly concluded that the Legislature’s use of the words “no additional examinations” and no “other reports” meansreports in addition to the IMR report. An IMRis performedif a controversy relating to diagnosis or treatment within the MPN is not resolved through the multi-level dispute -18- process. (Labor Code §4616.4(b).) The appeal process occurs only if an injured employee disputes a “diagnosis”or “treatment prescribed” within the MPN. (/d.) Labor Code §4616.3 and §4616.4 describe the process by which an injured worker may seek proof of her need for additional medical treatment within the MPN. Section 4616.6 restricts additional efforts (once an IMRhas been obtained) to show the employer’s liability to furnish further medical treatment within the MPN. Labor Code §4616.6 applies only to evidence that is obtained to resolve a “controversy arising out of...” any of the eight statutes of Article 2.3, all of which relate solely to the issues of medical treatment and diagnosis by physicians within the MPN. Article 2.3 does not mention temporary disability, permanent disability, or the adjudication of such claims, which are decided outside the MPN. In this case, there was no dispute regarding diagnosis or treatment. The sole issue before the WCABwasPetitioner’s entitlement to temporary disability (an issue outside the purview of Article 2.3). At trial, the WCJ relied upon the report of the Petitioner’s treating physician, the only medical report offered into evidence. The WCJ accepted that report into evidence and issued an award of temporary disability. (Exhibit “6,” 31-32.) -19- Thus, the Second District Court of Appeal correctly opined that “the rule of exclusion laid down by section 4616.6 applies only whenthere has been an independent medical review performed underthe authority of section 4616.4.” (Opinion, pg. 2.) Given the context of this case and the clear and unambiguous language ofLabor Code §§4605 and 5703(a), Respondents havefailed to justify review of the Opinion basedontheir distorted interpretation of Article 2.3 including Labor Code §4616.6. RESPONDENTS’ REQUEST FOR DEPUBLICATION SHOULD BE REJECTED California Rules ofCourt, Rule 8.1125(a)(2) provides that a request for depublication “must not be made part of a petition for review, but by a separate letter to the Supreme Court not exceeding 10 pages.” Inthis case, Respondents’ request for depublication which is found on page 29 oftheir 31-page brief, does not comply with the Rule. Accordingly, their Request should be denied on procedural grounds alone. Evenif this Court should considertheir request, it should be denied. The publication of the Opinion should be left undisturbed because of the ubiquitous application of the en banc decision by administrative law personnel and by members of the workers’ compensation claims -20- community. Dozens if not hundreds of hearings are sought every week due to the erroneous denial of benefits based on an allegation thatthe injured workeris “treating outside of the MPN.” The Opinion in this matter provides neededclarity and will bring relief to the overburdened workers’ compensation calendar. CONCLUSION For the foregoing reasons, Petitioner, Elayne Valdez respectfully requests that Respondents’ petition and request for depublication be denied. DATED: August 16, 2012. Respectfully submitted, SERBIN & MENQOZA A Professional Corporatj Attorneys for Petitioner, ELAYNE VALDEZ -21- CERTIFICATE OF COMPLIANCE Counsel of Record, herebycertifies that, pursuant to California Rules ofCourt, the enclosed ANSWER TO PETITION FOR REVIEW was produced using 13-point type, including footnotes, and contains approximately 4,190 words. Counselrelies on the word countofthe computer used to prepare this Brief. DATED: August 16, 2012. Respectfully submitted, Zz Ellen Serbin, SB #128895 John Mendoza, SB #140007 PERONA, LANGER, BECK, SERBIN & MENDOZA A Professional Corporation Attorneys for Petitioner, ELAYNE VALDEZ -22- PROOFOF SERVICE STATE OF CALIFORNIA COUNTY OF LOS ANGELES I am employedin the county ofLos Angeles, State of California in the offices of a memberofthe Bar of this Court. I am overthe age of 18 and nota party to the within action; my business address is 300 East San Antonio Drive, Long Beach, California 90807-0948. Onthe date given, I served the following document: ANSWERTO PETITION FOR REVIEW on the interested parties through their attorneys ofrecord by placing true and correct copies thereof addressed as shownontheattached list, as designated below: (X) BY FIRST CLASS MAIL(C.C_P. §§ 1013a, et seq.): I caused said document(s) to be deposited in the United States Mail in a sealed envelope with postage fully prepaidat Long Beach, California, followingthe ordinary practice at my place of business of collection and processing of mail on the same day as shownonthis declaration. O BY EXPRESS MAIL (C.C.P. §§ 1013(c)(d), et seq.): I caused said document(s) to be deposited with an express Service Carrier in a sealed envelope designed by thecarrier as an express mail envelope, with fees and postage prepaid. I declare under penalty of perjury underthe lawsofthe State of California and of the United States of Americathat the aboveis true and correct. I declare that I am employedin the office of a memberofthe bar of this Court at whose direction the service is made. DATE: August 17, 2012 YAOt. BGILA Carol Stephen ___ SERVICELIST _ Name and Address of Counsel Party Represented Neil P. Sullivan (112113) James T. ‘Losee (144618) Workers' Compensation Appeals Board P. O. Box 429459 San Francisco, CA 94142-9459 (415) 703-5028 Attorneys for Respondent, WCAB Timothy E. Kinsey (155415) Sam L. Lebovitz Stewart R. Reubens (145672) GRANCELL, LEBOVITZ, STANDER, REUBENS AND THOMAS 7250 RedwoodBlvd., Suite 370 Novato, CA 94945 (415) 892-7676 Attorney for Defendant and Respondent, Zurich North America as administered by ESIS Christina J. Imre (96496) Michael M. Walsh (150865) SEDGWICK LLP 801 S. Figueroa St., 18" FI. Los Angeles, CA 90017 (213) 426-6900 Co-Counsel for Zurich North America as administered by ESIS Charles E. Clark (86099) ATTORNEY AT LAW 301 E. Colorado Blvd., Suite 807 Pasadena, CA 91101 (626) 795-3640 Attorneys for Amicus Curiae California Applicants’ Attorneys Association (CAAA) Stuart I. Barth (33278)GOLDFLAM & BARTH1644 Wilshire Blvd., Suite 200Los Angeles, CA 90017 Attorneys for AmicusCuriae - CAAA(213) 483-6182 Nameand Address of Counsel Party Represented Charles R. Rondeau (164136) THE RONDEAU LAW FIRM Co-Chair of the Amicus Curiae Committee 2677 N. Main St., Suite 225 Santa Ana, CA 92705 (310) 545-9292 Attorneys for Amicus Curiae - CAAA Michael A. Marks (071817) LAW OFFICES OF SAUL ALLWEISS 18321 Ventura Blvd., Suite 500 Tarzana, CA 91356 (818) 343-7509 Attorneys for Amicus Curiae - California Workers’ Compensation Institute David Hoppen, Chief Operating Officer ICW GROUP P.O. Box 11474 Pleasanton, CA 94588 (924) 474-2800 Barry M. Lesch (066569) LAUGHLIN FALBO LEVY & MORESI 555 12" St., Suite 1900 Oakland, CA 94607 Clerk of the CourtCA. COURT OF APPEAL,2”District, Div. 7300 S. Spring St., 2"¢ Fl., North TowerLos Angeles, CA 90013