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So You Want to Assert the MPN? PROVE IT.

In the recent case of Claytor v. Latteri, 2023 Cal. Wrk. Comp. P.D. LEXIS 4, the Board revisited what is required to bring an applicant back into the MPN after authorizing out-of-network treatment. In that case, the applicant had treated for years out of the MPN with Dr. Spencer, then voluntarily elected to transfer care to a new PTP within the MPN, Dr. Small. When the applicant then tried to transfer back to non-MPN Dr. Spencer, the defendant refused to authorize the transfer. Despite there being no apparent showing that the defendant had denied care to the applicant such that non-MPN treatment was warranted, both the trial judge and, on reconsideration, the Board, determined that the applicant was allowed to treat outside of the MPN. 

However, this is not necessarily a decision that the defense community should be concerned about when it comes to the actual interpretation of the law. Rather, this case provides a lesson on ensuring that you have your evidence in line before you take a dispute to trial. 

In this case, the defendant did not actually present any evidence that the applicant had returned care to the MPN before electing to return to the original out-of-network PTP, Dr. Spencer. In fact, it appears the defense merely asserted that Dr. Small was in network and did not obtain a stipulation from the applicant, nor present any supporting evidence to prove Dr. Small was in the MPN. As the Board stated, "If Dr. Small is a member of defendant's MPN (whether the old or new MPN), there may be a viable argument that applicant voluntarily returned herself to the MPN by selecting Dr. Small as her PTP and she may not now choose a PTP outside the MPN absent a denial of care. However, this conclusion presumes that Dr. Small is actually in the MPN, a fact that applicant has not conceded and is not supported by substantial evidence in the record." (Claytor v. Latteri, 2023 Cal. Wrk. Comp. P.D. LEXIS 4, *13.)

The takeaway is a basic one that is often forgotten in the realm of administrative law - argument is not evidence. If you want to win at trial, you have to prove the facts supporting your argument, which means presenting evidence to support every relevant fact, even if it does not appear to be in dispute. Your argument is only as strong as the evidence you have to back it up.