The Workers’ Compensation Appeals Board, in split panel opinion, confirmed that a Medical Access Assistant’s (MAA) failure to schedule appointment with applicant’s selected MPN physician pursuant to 8 Cal. Code Reg. § 9767.5 was not denial of medical care justifying treatment outside MPN. (Sierra Prado, Applicant v. PCG Hospitality, Travelers Insurance Co., 84 CCC 136).

Applicant’s claim was settled by Stipulated Award. Applicant requested a change of primary treating physician and provided three different names from the MPN list. Applicant requested the MAA set with whichever doctor was first available. It was determined however that the three doctors requested would not accept applicant as a patient. The MAA requested applicant select another physician. No response was received so the MAA unilaterally selected a new PTP for applicant and scheduled an appointment. Applicant’s attorney objected to the unilateral selection and challenged the MPN as inadequate. Applicant’s attorney requested a PTP outside the MPN. The matter was set for trial on the issue of whether applicant was entitled to medical treatment outside the MPN due to the MAA’s failure to schedule an appointment with a selected MPN physician pursuant to Rule 9767.5.

The WCAB panel majority found that defendant provided applicant with continuing treatment within MPN until she requested change of primary treating physicians and that the MAA acted diligently and reasonably to assist applicant in finding and scheduling an appointment with a new primary treating physician within the MPN. Although the three doctors selected by applicant were noted as available on the MPN list, they were not available to treat applicant. This does not make the MPN list illusory. A physician’s availability is not guaranteed simply because he is on MPN list. The unavailability of a selected physician does not automatically allow an injured employee to treat outside the MPN.

There was a dissenting opinion from Commissioner Sweeney who opined that applicant’s ordeal finding available primary treating physician from an unreliable MPN list was sufficient reason to allow applicant to obtain medical treatment outside the MPN at defendant’s expense. Commissioner Sweeney reasoned that MAA’s endeavors to assist applicant in finding new primary treating physician did not ameliorate defendant’s failure to provide accurate and current information regarding availability of doctors in its MPN. Commissioner Sweeney felt the failure to provide current information delayed applicant’s receipt of necessary medical treatment and was unreasonable.

Here, the crucial difference is that defendant provided a MAA, who was in regular contact and assisting applicant with the scheduling of an appointment. The record indicates that the MAA was in contact with applicant’s attorney regarding the needed to pick another PTP. Applicant’s attorney made the decision not to pick another PTP. Applicant’s attorney’s failure to select another PTP is why the MAA scheduled an to ensure applicant received medical treatment. The goal is to maintain medical treatment for the applicant and the MAA ensured treatment continued.