Temporary Disability When Treatment Is Not Authorized By UR

The Legislature created for industrially injured employees the right to receive Temporary Disability benefits in order to afford them with a stream of income during the recuperation period for the purpose of expediting their return to work. Recognizing this goal, the Legislature and the Courts have expressed various means of terminating the employer’s obligation to furnish TD, such as the employee’s retirement from the open labor market (Gonzales v WCAB (1998) 63 CCC 1477), the employee’s actual return to work (Braewood Convalescent Hospital v WCAB (Bolton) (1983) 48 CCC 566), a physician’s opinion that the employee could return to unrestricted duties (Bethlehem Steel v I.A.C. (Lemons) (1942) 7 CCC 250), the employee’s refusal to return to suitable modified duties (Young v Johns-Manville Products Co. (1946) 11 CCC 217) or the expiration of the 104 week time frame (Labor Code Section 4656).

One primary basis for extinguishing the duty to furnish TD occurs where there is a medical opinion constituting substantial evidence that provides that the employee’s condition has reached a point of permanent and stationary status. (Department of Rehabilitation v WCAB (Lauher) (2003) 68 CCC 831) CCR Section 10152 provides that a disability is deemed permanent when the employee has reached maximum medical improvement, meaning that the condition is well stabilized and unlikely to change in the next year, with or without medical treatment. Pursuant to Labor Code Section 4600(b), medical treatment must be reasonably required to cure or relieve the injured worker from the effects of the injury which treatment must be in accordance with the guidelines set forth in Labor Code Section 5307.27.

Can the employee claim entitlement to TD where he/she believes that further treatment will change the condition but that the defined modality was not certified by Utilization Review. Fortunately, the Court, in Keltner v California Guest Services 2017 Cal. Wrk. Comp. P.D. LEXIS 94, responded in the negative.

Mr. Keltner sustained an admitted industrial injury to his lumbar spine. He received care from his Primary Treating Physician, who ultimately opined, after all treatment measures failed to alleviate the symptoms, that spinal fusions would be necessary. The employer conducted a timely Utilization Review. The Request for Authorization was not certified and IMR sustained that determination. An AME evaluated Mr. Keltner and concluded that, although he disagreed with the UR determination, the condition had reached a P & S plateau. At the time of trial, the employee stated that he desired to undergo the spinal fusion and that his condition should be deemed temporarily totally disabling until such time that stabilization was achieved after the operation. The Court held that it had no jurisdiction to determine the propriety of performing the spinal fusion given the timely performance of Utilization Review. Thus, the AME’s opinion that the condition had reached a P & S plateau constituted substantial evidence and precluded an award of further TD benefits.

This decision was completely consistent with the Legislature’s purpose in creating the TD benefit. More importantly, this case underscores the principle that an employer’s conduction of a timely Utilization Review is indispensable, not only in terms of limiting liability with respect to medical care but also the obligation to furnish TD benefits. (Dubon v World Restoration, Inc. (2014) 79 CCC 1298 and Ramirez v WCAB (March 29, 2017))