Q: Can 8 CCR 9767.5 be utilized when there is a limited specialty in our MPN that does not consist of three viable choices?

A: My opinion is the Regulation itself is not binding. The WCAB has held that, although defendant’s MPN did not provide minimum of three physicians within 15 miles of applicant’s workplace, the WCAB found that, to extent 8 CCR section 9767.5(b) exceeds scope of Labor Code section 4616(a)(1) the statute is controlling. (Miguel Robles v. WCAB, 78CCC 168).

The Robles case did not specifically address the following language in Labor Code section 4616(a)(1):

“…an adequate number and type of physicians, as described in Section 3209.3, or other providers, as described in Section 3209.5, to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged, and the geographic area where the employees are employed…”

The above language is the “controlling” language and legal standard for maintaining the integrity of an employer’s MPN in my opinion. Thus assuming the employer can and is willing to prove with physician testimony that it had at least three and preferably many more “adequate” type(s) of physicians “to treat common injuries experienced by injured employees based on the type of occupation or industry in which the employee is engaged” who are also “in the geographic area” mandated by the statute, my opinion is the MPN can be successfully asserted and maintained. It is further my opinion that an applicant must treat within that network assuming the standard above is met.

The Robles case reflects that Labor Code section 4616 is controlling on the issue and that statute uses neither the term “three” or “specialty” as it relates to the legal standard applicable to an employer’s MPN. The standard is “an adequate number and type” of physicians.