In Eun Jae Kim v. B.C.D. Tofu House, et. al. (“Kim”), (2014) 79 Cal. Comp. Cases 140, the WCAB issued a significant panel decision addressing whether an expedited hearing may be requested to determine if the injured worker must treat in the employer’s medical provider network during the 90-day delay period.

Defendant provided applicant the MPN notice, the claim was delayed, and applicant designated a primary treating physician outside the MPN. Defendant filed a declaration of readiness to proceed to an expedited hearing seeking an order to transfer care into the MPN and an order that defendant is not liable for non-MPN treatment with the primary treating physician who was outside the MPN.

The WCJ ordered the expedited hearing off calendar reasoning that since the claim was not accepted, the issue was not eligible for an expedited hearing per Title 8, California Code of Regulations, section 10252 (renumbered to section 10552), which allows for an expedited hearing on the issue of applicant’s entitlement to medical treatment when an injury to any body part(s) is accepted as compensable.

Upon review, the WCAB dismissed the petition for removal as the issue was moot because the 90-day delay period had passed by the time of review; however, the WCAB proceeded to issue an opinion on the issue on its own motion.

The WCAB analyzed Labor Code section 4616.3(a) that requires defendant to provide treatment within the MPN upon notice of the injury, even if the claim has not been accepted or denied and is within the 90-day delay period, and analyzed Title 8, California Code of Regulations, section 9767.6(c) concerning payment of treatment during the delay period.

The WCAB indicated that the former Title 8, California Code of Regulations, section 10252 preceded the amendment of Labor Code section 5502(b) by Senate Bill 863, which allows an expedited hearing on the issue of whether applicant is required to obtain treatment within a MPN, and that to the extent that Labor Code section 5502(b) is inconsistent with the regulation, the statutory provision prevails.

The WCAB reasoned that it is apparent from the plain language of Labor Code section 5502(b)(2) and Title 8, California Code of Regulations,section 9767.6(c) that an expedited hearing is available to address whether applicant must treat within the MPN during the 90-day period even if defendant has not accepted liability for the claim per Title 8, California Code of Regulations, section 10252.

Therefore, defendant may request an expedited hearing on the issue of whether the injured worker must treat in the employer’s medical provider network during the 90-day delay period.

An expedited hearing was scheduled; however, the hearing was taken off calendar because the WCJ reasoned that Title 8 California Code of Regulations 10252 precluded an expedited hearing on the issue of applicant’s medical treatment in the MPN because the injury was not accepted as compensable even thought the 90-day period allowed to make a decision to accept or deny the injury had not elapsed.

The WCAB upon review of the WCJ’s decision indicated that the WCJ did not take into account the amendment of Labor Code section 5502(b)(2) by Senate Bill 863 to provide for an expedited hearing to address the question of “Whether the injured employee is required to obtain treatment within a medical provider network . . . “ To the extent the amendment of Labor Code section 5505(b) is inconsistent with Rule 10252, the staturoty provision prevails.