Law Offices of Ainbinder & Pratt
What is the effect on a claim for temporary disability or permanent disability if a worker self-procures treatment that was denied by utilization review and IMR?
That was the question in a 2017 WCAB panel decision, Belinda Go v. Sutter Solano Medical Center (ADJ 10168011) . The result in Go stands, as both the California Court of Appeal and the California Supreme Court have recently declined review of Go (see the text of the Go case at the bottom of this post).
One of Ms. Go’s treating physicians had requested authorization to do cervical spine surgery, but the surgery was turned down by UR. The denial was appealed to IMR, but IMR upheld the denial. After trying to go back to work the applicant apparently decided to pursue surgery anyway. According to the panel decision, she self-procured surgery with another surgeon. The panel decision does not make it clear whether this was done out of her own pocket or whether Ms. Go used her group medical coverage to fund the surgery.
This is a scenario we often see in California workers’ comp.
But is the employer/comp carrier liable for the post surgical TD and any associated PD? Go’s employer contended because the surgery was denied by UR and IMR that it had no liability for permanent disability or temporary disability that the surgery caused. The workers’ comp judge disagreed, taking the surgery in consideration in awarding a period of TD and in formulating the rating based on a post-surgical PQME report. The panel notes that the trial judge “determined that applicant was entitled to the indemnity awarded for temporary
Defendant appealed, but the panel (Commissioners Razo, Brass and Zalewski) upheld the WCJ’s order, analyzing a string of cases involving TD claims after unauthorized surgeries. Referenced cases include Barela v. Leprino Foods (2009), Ribeiro v. WCAB (2015), Bucio v. County of Merced (2015), as well as Valdez v. WCAB (2013) and the recent case of Hikida v. WCAB (2017).
Clearly a worker can pursue self-procured treatment under Labor Code 4605 but will have to have an alternate payment source for such treatment.
According to the panel:
“In that the UR and IMR statutes are silent on the question of temporary disability indemnity, an employee is not precluded from claiming it even if the disability results from reasonable medical treatment that is self-procured pursuant to section 4605. It is recognized that this has the potential to expose an employer to liability for the consequences of medical treatment that does not meet the standards of reasonableness established by the Legislature for section 4600 medical treatment through the DR and IMR processes. (See, Lab. Code, § 5307.27 [providing for the establishment of”a medical treatment utilization schedule” that incorporates “evidence-based, peer-reviewed, nationally recognized standards of care…”) However, this is the law under the existing statutes.”
Elsewhere in the Go panel decision it is noted that the trial judge “determined that applicant was entitled to the indemnity awarded for temporary disability and permanent disability following the surgery because the treatment proved to be reasonable by its positive outcome“.
Under Hikida it could probably be argued that unfortunate consequences of an unauthorized surgery would be a basis for TD and PD.
Perhaps we will someday see cases where there is a retrospective fight over whether an unauthorized surgery was in fact unreasonable altogether if it neither helped or nor made the condition worse.
But for now Go is a case that is likely to be helpful to workers who are caught up in a cycle of treatment denial under the UR/IMR system.
Here is the text of the Go panel decision: