Keltner v. California Guest Services (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS (94):
The WCJ found that the determination of the Agreed Medical Evaluator indicating that in the absence of surgery applicant’s lumbar spine injury and reached a permanent and stationary status.
The WCJ ruled the medical report of the Agreed Medical Evaluator was substantial evidence despite the fact the evaluator did not review the utilization review will reports denying lumbar surgery.
On Reconsideration the WCAB in a split decision affirmed the WCJ.
The WCAB concluded that the applicant’s condition met the definition of permanent and stationary status because there was no medical evidence that his condition was likely to substantially improve under the current medical treatment, that because surgery was denied by UR, the WCJ lacked authority to consider the merits of applicant’s need for surgery, therefore, there was no pending approved medical treatment to support a finding of continuing temporary disability.
Because the utilization review determination disallowing surgery was final for one year, absent change circumstances there was no basis to award continuing temporary disability.
Commissioner Sweeney, dissented, and would’ve returned the matter to the WCJ to obtain clarification as to whether applicant was in fact temporarily disabled. The Commissioner found this case similar to San Francisco Police Department v. WCAB (Casey) (79 CCC 970) where the WCAB found temporary disability based on the report of the Agreed Medical Evaluator finding injured worker remain temporarily disabled even after the utilization review denial of the surgery because he was motivated to pursue benefits of surgical procedure, and the Commissioner was persuaded that substantial justice required further development of the record to determine whether applicant actually reach permanent and stationary status or whether the Agreed Medical Evaluator acquiesced to the fact that utilization review denied the surgery.