Labor Code 4616.3(c) establishes a process that allows injured employees to obtain second and third opinions from physicians within a medical provider network. It states, “If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network.”
Per LC 4616.4(b), “If, after the third physician’s opinion, the treatment or diagnostic service remains disputed, the injured employee may request an MPN independent medical review regarding the disputed treatment or diagnostic service still in dispute … in accordance with Section 4616.3.” That’s referred to as an MPN IMR.
California Code of Regulations § 9767.7 supports those statutes. CCR 9767.7(a) restates that an employee may obtain a second and third opinion from physicians within an MPN if he or she disputes either the diagnosis or the treatment prescribed by the treating physician. CCR 9767.7(b) states that to invoke that right, the employee must:
- Inform the defendant that he or she disputes the treating physician’s opinion and requests a second opinion. That may be done orally or in writing.
- Select a physician or specialist from a list of available MPN providers.
- Make an appointment with the second opinion physician within 60 days. And
- Inform the defendant of the appointment date.
If the employee requests a second opinion, a defendant must:
- Provide at least a “regional area listing” of providers or specialists as appropriate to the employee.
- Inform the employee of his or her right to request the records that will be sent to that physician (and provide them if requested).
- Send the records to the second opinion physician before the appointment date and provide a copy to the employee on request. And
- Notify the physician that he or she has been selected to provide a second opinion and of the nature of the dispute (with a copy to the employee)
If the employee disagrees with either the diagnosis or treatment prescribed by the second opinion physician, she or he may seek the opinion of a third physician within the MPN, using the same process. If the employee disagrees with the diagnosis or treatment of that physician, she or he may file with the administrative director a request for an MPN IMR.
Although that process has been in place for many years, it’s not commonly used. Employees have the right to change treating physicians within an MPN, and many employees find that to be a better solution. Nevertheless, it remains an option for applicants who want to obtain consulting opinions without having to change treating physicians.
Recently, in Williamson v. Aramark, Inc., 2022 Cal. Wrk. Comp. P.D. LEXIS 350, the WCAB explained how LC 4616.3(c) and CCR 9767.7 could be used to obtain a consulting evaluation. In that case, the applicant sustained an injury to the “head” and requested a second opinion evaluation in neurology with Dr. Kenneth Geiger. Although the treating physician was a neurologist, the applicant’s attorney sent the defendant a letter stating, “Applicant exercises his right to a second opinion physician pursuant to Labor Code Section 4616.3(c) and 8 CCR 9767.7,” and selected Dr. Geiger to perform the examination. Rather than authorize the examination, the defendant sent the request to utilization review (UR), which also approved the second opinion consultation, but excluded treatment. When the defendant failed to authorize a consultation, the matter proceeded to a hearing.
The WCAB adopted the WCJ’s decision that the applicant’s failure to articulate a specific objection to the treating physician’s diagnosis and treatment recommendations did not preclude him from obtaining a second opinion consultation. It also found that an evaluation by a QME did not excuse the defendant from its obligation to comply with a second opinion consultation.
The WCAB found that pursuant to LC 4616.3 and CCR 9767.7, it was the applicant’s right and responsibility to designate the second (and third) opinion consulting physician and arrange for the evaluation. It also noted that after UR, the applicant requested an IMR, which determined that referral to a neurologist to include treatment as a second opinion was medically necessary. So the WCAB concluded that the applicant was entitled to a second opinion consultation under both the UR IMR track and the MPN IMR (second opinion consult) track.
So, although requests for consulting physicians within an MPN are commonly made by requests for authorization, which are subject to UR, it might be easier for injured employees to obtain consulting physicians by invoking LC 4616.3 and CCR 9767.7. The second and third opinion process does not require the treating physician to request a consultation and does not allow the defendant to deny a second opinion consultation when one is requested. Moreover, if LC 4616.3 and CCR 9767.7 are invoked, the employee has a right to select the consulting physician.
Although employees should explain that the second and third opinion consultation request is pursuant to LC 4616.3 and CCR 9767, Williamson makes it easier to obtain a consulting opinion. It establishes that failure to make a specific objection to the treating physician’s diagnosis and treatment recommendations will not preclude the employee from exercising the right. Furthermore, a second or third opinion consultation may be obtained even if an employee has been evaluated by a QME.
Moving forward, it might be more common for injured employees to request second and third opinion consults under LC 4616.3 and CCR 9767.7.
Attorney of Counsel
Michael Sullivan & Associates, LLP.
Mr. Log is a specialist in workers’ compensation defense and related labor law issues.