ADJ808475 · August 25, 2023

Applicant's allegations were conclusory and not supported by specific facts; no verified or timely petition for disqualification was filed; no evidence of bias or improper advocacy by the WCJ.

From the decision · page 4Finally, WCAB Rule 10960 provides that when the WCJ and "the grounds for disqualification" are known, a petition for disqualification "shall be filed not more than 10 days after service of notice of hearing or after grounds for disqualification are known." Therefore, we deny the Petition to the extent that it seeks disqualification.

Defendant complied with the regulatory requirements for transfer to MPN, provided proper notice, and applicant received additional time for treatment outside the MPN due to a serious chronic condition. No evidence showed defendant lost medical control or failed to comply with notice requirements.

From the decision · page 11Petitioner argues that due process requires a full development of the record in all worker's compensation cases. The Court agrees. However, the question of whether the requirements of 8 C.C.R. 9767.9 have been met required neither additional discovery nor further development of the record. The evidence submitted at trial justified the granting of defendant's Petition; applicant admitted to receiving the transfer of care notices, Dr. Holmes objected to the transfer, and defendant delayed the transfer in accordance with Dr. Holmes' objection well beyond the time that it was required to do so. Defendant's transfer of care notices complied with both 8 C.C.R. 9767.9 and 8 C.C.R. 9767.12. The record contained no obvious deficiencies warranting supplementation.

Defendant provided applicant with transfer of care notices and complied with regulatory requirements for MPN transfer, including additional time for treatment outside the MPN due to a serious chronic condition.

Favours Defendant prevailed

Established that defendant did not lose medical control and was entitled to transfer applicant to MPN.

From the decision · page 11Petitioner argues that due process requires a full development of the record in all worker's compensation cases. The Court agrees. However, the question of whether the requirements of 8 C.C.R. 9767.9 have been met required neither additional discovery nor further development of the record. The evidence submitted at trial justified the granting of defendant's Petition; applicant admitted to receiving the transfer of care notices, Dr. Holmes objected to the transfer, and defendant delayed the transfer in accordance with Dr. Holmes' objection well beyond the time that it was required to do so. Defendant's transfer of care notices complied with both 8 C.C.R. 9767.9 and 8 C.C.R. 9767.12. The record contained no obvious deficiencies warranting supplementation.

Applicant refused to attempt to establish care with MPN providers despite being provided with information and tools to do so.

Favours Defendant prevailed

Showed that applicant's inability to establish care within the MPN was not due to defendant's failure, but applicant's own refusal.

From the decision · page 12The Court found that defendant followed the necessary procedures to effectuate the transfer of care. Accordingly, the Court granted defendant's Petition. Defendant has provided applicant with the information and tools required to establish care in its MPN (e.g. contact information for Medical Access Assistant). Thus far, the applicant has refused to use these tools to attempt to establish care within the MPN. If in the future, the applicant can demonstrate to the Court that despite his best efforts, he is unable14 to establish care within the MPN, such might entitle him to treat outside of defendant's MPN. However, as of the present time and existing record, this has not been proven true.

Applicant's petition for disqualification was not verified or supported by specific facts.

Favours Defendant prevailed

Failure to meet procedural requirements for disqualification led to denial of the petition.

From the decision · page 4Finally, WCAB Rule 10960 provides that when the WCJ and "the grounds for disqualification" are known, a petition for disqualification "shall be filed not more than 10 days after service of notice of hearing or after grounds for disqualification are known." Therefore, we deny the Petition to the extent that it seeks disqualification.

Dr. Holmes objected to the transfer to MPN, stating applicant suffers from a serious and chronic condition, which resulted in applicant receiving an additional year of treatment outside the MPN.

Dr. Holmes' objection delayed the transfer, but defendant ultimately complied with the regulations and transfer was permitted.

From the decision · page 7At some point thereafter, defendant apparently created an MPN and attempted to transfer applicant into the network. In accordance with 8 C.C.R. 9767.9, on October 4, 2018, Defendant sent a Transfer of Care notice6 to the applicant, with a copy to Dr. Holmes. the applicant testified that if it was sent to his P.O. box, then he received the letter.7 Dr. Holmes received and objected8 to the letter, providing his March 18, 2019 response that the applicant suffers from a serious and chronic

Lab. Code § 4600(a); Lab. Code § 4616(a)(1); Cal. Code Regs., tit. 8, §§ 9767.9, 9767.12

Medical treatment must be provided by the employer, and transfer to MPN is permitted unless exceptions apply. No time limit for transfer to MPN. Proper notice and compliance with regulations required.

Defendant followed the required steps for transfer to MPN, and applicant received proper notice and additional time for treatment outside the MPN due to a serious chronic condition.

From the decision · page 2The injured employee may be transferred into the MPN for medical treatment unless certain exceptions apply. (Cal. Code Regs., tit. 8, § 9767.9(a).) One exception allows an additional year of treatment outside the MPN when the injured employee has a serious chronic condition. (Cal. Code Regs., tit. 8, § 9767.9(e)(2).) Applicant was provided with an additional year of treatment outside of the MPN due to his serious chronic condition. (Report, pp. 3-4.)

Lab. Code § 5311; Code Civ. Proc. § 641; Cal. Code Regs., tit. 8, § 10960

A WCJ may be disqualified only upon specific, verified factual grounds; conclusory allegations or subjective perceptions of bias are insufficient.

Applicant's petition for disqualification was not verified, timely, or supported by specific facts; thus, disqualification was denied.

From the decision · page 2II. Disqualification To the extent that applicant claims the WCJ improperly advocated on behalf of the defendant, we treat applicant's Petition as one for disqualification. Labor Code section 5311 provides that a party may seek to disqualify a WCJ upon any one or more of the grounds specified in Code of Civil Procedure section 641. (Lab. Code, § 5311; see also Code Civ. Proc., § 641.) Among the grounds for disqualification under section 641 are that the WCJ has "formed or expressed an unqualified opinion or belief as to the merits of the action" (Code Civ. Proc., § 641(f)) or that the WCJ has demonstrated "[t]he existence of a state of mind... evincing enmity against or bias toward either party." (Code Civ. Proc., § 641(g).) Under WCAB Rule 10960, proceedings to disqualify a WCJ "shall be initiated by the filing of a petition for disqualification supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification...." (Cal. Code

Applicant admitted to receiving transfer of care notices and was provided with information and tools to establish care in the MPN, but refused to use them.

From the decision · page 12The Court found that defendant followed the necessary procedures to effectuate the transfer of care. Accordingly, the Court granted defendant's Petition. Defendant has provided applicant with the information and tools required to establish care in its MPN (e.g. contact information for Medical Access Assistant). Thus far, the applicant has refused to use these tools to attempt to establish care within the MPN. If in the future, the applicant can demonstrate to the Court that despite his best efforts, he is unable14 to establish care within the MPN, such might entitle him to treat outside of defendant's MPN. However, as of the present time and existing record, this has not been proven true.

Applicant's testimony confirmed receipt of required MPN notices, satisfying regulatory requirements.

From the decision · page 11Applicant testified that he received these notices. Such satisfies the requirements of 8 C.C.R. 9767.12. Applicant did not introduce evidence that defendant has lost medical control on this basis.