A Successful Petition to Change Treating Physician
Even after the 2004 implementation of the Medical Provider Network (MPN) as part of SB 899, a great many employers and carriers have elected not to develop an MPN. This leaves the employee to elect the treating physician of their choice. The election not to use an MPN may have certain advantages but allowing the employee to treat with the physician of their choice can result in uncontrolled provisions of care and temporary disability certification over extended periods of time which will drive up the cost of the claim. Getting control over the medical care by compelling a change in treating physician is just one way for an employer or carrier to limit claims costs. Drafting an effective and compliant Petition for Change of Primary Treating Physician (PTP) is critical to achieving that objective.
As a first point of consideration, it should be noted that 8 CCR 9767.6(f) bars an employer or carrier from compelling a change of treating physician by Petition where the employee is treating with a physician within the MPN.
In other cases where the employee is treating outside the MPN or where no valid MPN has been established, Labor Code section 4603 allows an employer to petition the administrative director by showing of good cause for an order whereby the employer may provide a panel of five physicians (or at the employee’s request, four physicians and one chiropractor) from which the employee may select a new treating physician.
The Petition should be contained on the DWC Form 280 (Part A). The Petition should be accompanied by a verified statement of facts establishing good cause to compel the change of treater (8 CCR 9786).
The following are noted to constitute good cause but this list is not exhaustive:
- PTP has failed to report timely or the PTP reports are inadequate per 8 CCR 9785.
- The PTP has failed to Comply with 8CCR 9785(f)(8) for failure to submit timely reports on 2 occasions in a period of 12 months.
- The current treatment is not consistent with the treatment plan submitted per 8 CCR 9785(e) or (f)
- The PTP’s facility is outside the reasonable geographic with consideration to the employees place or residence, the location where the injury occurred and the number of physicians in the area within the field of practice necessary to cure or relieve the effects of the injury.
- The PTP has a conflict of interest (familial, financial, employment etc) with the injured employee such that there is a potential interference with the physician’s ability to make impartial medical decisions.
Where basis for good cause is claimed to be inadequate reporting, the petition should contain documentation or written verification that the claims administrator notified the PTP of the reporting requirements of 8 CCR 9795 in advance of the PTP’s failure to properly report.
Where good cause is sought based on failure to issue “Doctor’s First Report of Occupational Injury or Illness” within 5 working days of the initial exam, the petition shall be filed within 90 days of that initial exam date.
The petition should include a proof of service to document (1) The petition (Form 280, Part A), (2) any documentary evidence supporting the claim for good cause, and (3) a blank copy of the “Response to Petition for Change of Primary Treating Physician” (DWC Form 280, Part B) were all served on the employee, the employee’s attorney of record and the current primary treating physician.
Once filed and served, the administrative director shall have 45 days to act on the petition by dismissing the petition for failure to comply with procedural requirements, deny the petition for failure to demonstrate good cause for changing PTP, grant the petition, refer the issue to the WCJ for hearing, or issue a Notice of Intention to Grant the Petition and an order for submission of additional documents or information.
It should be recognized that the process for compelling a change in treating physician is involved and very technical. Failure to strictly comply with the foregoing regulations and requirements will certainly result in a summary denial of the petition. A party seeking to compel a change of treating physician is well advised to review and become very familiar with the provisions of 8 CCR 9786 to ensure success.