The case of Barela v. Leprino Foods held that a utilization review determination does not bar permanent disability or temporary disability benefits.
Instead, UR only limits defendant’s liability for the requested medical treatment. When an applicant self-procured surgery that was denied by UR, and it resulted in an increased level of PD, the WCAB indicated that the defendant was liable for the increased PD.
But what happens when the applicant is considered permanent and stationary (P&S) by the QME/AME/PTP but for a specific treatment modality? Recall that CCR section 9785(a)(8), defines one as being P&S when the applicant’s condition has well stabilized, and is unlikely to change substantially in the next year with or without medical treatment.
Now let’s assume that utilization review issues a denial of the specific treatment modality requested. Is the applicant now P&S, because the condition is well stabilized for the next year? Or, does the Barela case and it’s progeny require a finding that applicant is entitled to TD benefits while awaiting a reversal of utilization review via Independent Medical Review or change in circumstances?
In the case of Keltner v. California Guest Services the applicant filed a petition for reconsideration of a judge’s ruling denying TD benefits because the AME had determined applicant was P&S in light of utilization review’s denial of lumbar surgery. The WCAB affirmed the decision.
The WCAB agreed with the AME’s reasoning that, in the absence of surgery, the applicant had reached P&S status. The court determined that the AME’s opinion was a valid opinion constituting substantial medical evidence, and that the applicant’s condition met the definition of permanent and stationary status as there was no medical evidence that applicant’s condition was likely to substantially improve in the next year.
The UR denying the surgery is valid for one year. As such, there was no basis to award continuing TTD benefits absent a change of circumstances.
Therefore, if the sole reason for applicant’s TTD status is the denial of medical treatment by UR, applicant is not likely to be entitled to TTD benefits.
Of course the situation will not always be so clear-cut when it comes to the medical reporting. What do you do if the medical-legal evaluator or treater fails to address the issue? You could consider sending a written interrogatory asking the doctor to specify whether the UR-denied treatment is the only thing keeping the applicant from being P&S. Alternatively, you could ask the doctor these questions at a deposition.
Rob D. Tomlin is an associate attorney at the Law Offices of Bradford & Barthel’s Anaheim office. If you have questions about utilization review, temporary disability, or any other workers’ compensation defense issues, please feel free to contact him at firstname.lastname@example.org or 714.526.9120.
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