Temporary Disability

County of San Diego v. Workers’ Compensation Appeals Board (Pike) (ADJ781190) ( 83 CCC 465):

 

The applicant filed a Petition to Reopen on May 26, 2015. The applicant contended his shoulder injury had worsened. The applicant sought salary continuation benefits pursuant to §4850 and temporary total disability benefits according to Labor Code §4653.

The county paid the applicant §4850 and temporary disability benefits due to him through the period ending five years from the date of injury.

The applicant sought additional §4850 and temporary disability benefits for a period occurring after five years from the date of injury July 31, 2010. Specifically, the applicant sought §4850 benefits for the period September 15, 2015 through March 28, 2016 and temporary disability benefits for the period March 29, 2016 through August 28, 2016.

The County contended that §4656, subdivision (c)(2) limited the applicant to §4850 benefits and temporary disability benefits to periods occurring within the first five years from the date of injury July 31, 2010 through July 31, 2015.

The WCJ found that when applicant has filed a timely petition to reopen, and temporary total disability benefits have commenced prior to the five years from the date of injury, the Appeals Board’s continuing jurisdiction over temporary total disability benefits continues beyond five years from the date of injury.

The County filed a Petition for Reconsideration. The WCAB, in a split decision, upheld the Worker’s Compensation Judge. The dissenting panel member concluded that §4656 (c) (2) is not susceptible of an interpretation that permits an award of temporary disability more than five years after the date of injury.

County filed a petition for Writ of Review that was granted.

The Court of Appeal stated that Labor Code §4656 provides different limitations on payment of temporary disability contingent upon the date of injury.

Labor Code §4656 (c) (2) provides that aggregate disability payments for a single injury occurring on or after January 1, 2008, causing temporary disability benefits may not be awarded for periods of disability occurring more than five years from the date of a worker’s injury.

The plain language of the section supports the conclusion that the Board may not award temporary disability payments for any period of disability occurring beyond five years from the date of injury. The language of the statute supports the conclusion that the Board is authorized to award a maximum of 104 of temporary disability payments to workers suffers an injury on or after January 1, 2008, but limits payments to periods of disability occurring within five years of the date of injury.

The legislative history supports the conclusion that for an injury occurring on or after January 1, 2008, the legislature intended to limit temporary disability benefits to five years from the date of a worker’s injury for injuries occurring on after January 1, 2008.

Case law interpreting an analogous restriction in former §4656 supports the conclusion that temporary disability benefits may not be awarded under §4656, subdivision (c) (2) for periods of disability occurring more than five years from the date of a worker’s injury.

The jurisdictional limitations in sections 5410, 5803 and 5804 are separate and distinct from the substantive law limiting an award of temporary disability benefits in §4656 (citing Nickelsberg v. Workers’ Comp. Appeals Bd. (1991) 54 Cal.3d 288).

Even assuming the Board had jurisdiction under §5410 to rule on applicant’s petition to reopen, the Board had no power to award benefits in direct contravention of the express substantive limitation on the award of temporary disability benefits contained in §4656(c)(2) – the Board must have both jurisdiction and law entitling the worker to benefits.

The liberal construction rule of §3202 should not be used to defeat the overall statutory framework and fundamental rules of statutory construction.

Pike v. County of San Diego (BPD) (2017 Cal. Wrk. Comp. P.D. LEXIS 293

The Appeals Board, acting on a timely petition to reopen, stated that the WCAB may award temporary disability benefits more than five-years from date of injury for injuries on or after January 1, 2008.

The decision further provided that the applicant is limited to an aggregate of 104 weeks of benefits.

The WCAB explained that the language of Labor Code §4656(c)(2) does not provide the temporary disability benefits may not be paid more the five years from the date of injury.

The WCAB went on to state that it was reasonable to conclude that the Legislature did not intend to prohibit otherwise temporarily disabled injured workers from receiving the full hundred and four weeks of such benefits if such temporary disability occurs within five years of the date of injury.

The dissenting Commissioner believed the Section limited TD towards to five years from the date of injury for injuries occurring under after January 1, 2008.

A writ of review to the Court of Appeal has been filed.

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 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 in circumstances there was no basis to award continuing temporary disability.

Commissioner Sweeney, dissented, and would have 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.

Go v. Sutter Medical Center (BPD) (2017 Cal. Wrk. Comp. LEXIS 412)

The WCAB held held that an employee is entitled to temporary total disability and permanent disability resulting from reasonable medical treatment for an industrial injury self-procured pursuant to Labor Code 4605.

The primary treating physician reported disability that rated at 7% after apportionment after cervical spine surgery was denied by utilization review and independent medical review.

The applicant then self-procured the surgery, and the QME reported increased disability, which rated at 23% after apportionment.

The WCAB adopted the WCJ’s decision that applicant was entitled to temporary disability and permanent disability following the surgery because the treatment proved to be reasonable by its positive outcome.

The WCJ explained that because the UR and IMR Statutes are silent on the question of temporary disability, an employee is not precluded from claiming it even if the disability results from reasonable medical treatment that is self-procured pursuant to Labor Code §4605.

It is recognized that this has a potential to expose an employer to liability for the consequences of medical treatment that do not meet the standards of reasonableness established by the Legislature for Labor Code §4600 medical treatment though the UR and IMR processes, but that is the way the law is under the existing statute.

The WCAB believed that the uniform standards that applied by Statute to Labor Code §4600 medical treatment are not statutorily applied to medical treatment that is self-procured per Labor Code §4605. The WCAB stated it was for the Legislature to determine if the standards that apply to Labor Code §4600 medical treatment should also apply to medical treatment self-procured per Labor Code §4605 for the purpose of determining entitlement to temporary and permanent disability indemnity.

The WCAB also held that because an employee entitled to apportion compensation for permanent disability caused by reasonable medical treatment of the industrial injury, the applicant was entitled to the 27%.

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.

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