Grinberg: WCAB Panel Provides Guidance on TD Due After P&S but Prior to Surgery

Thursday, January 28, 2021 | 0

Sometimes injured workers are faced with a daunting choice: undergoing surgery or having their temporary disability checks cut off.

Gregory Grinberg

Without surgery, in some cases, an applicant’s condition might be considered to have reached maximum medical improvement. Should that period of weeks and months while an applicant is “thinking” about whether or not to undergo surgery be covered as TD periods?

Let’s look at the recent panel decision in the case of Ware v. Sutter Health. Therein, the agreed medical evaluator declared applicant’s condition permanent and stationary, leaving open the possibility of elbow surgery sometime in the future. Subsequently, a new treating physician reported applicant was “TTD” and requested authority for elbow surgery.

Well, applicant argued that surgery on the horizon was enough to make him temporarily disabled, while defendant argued that until applicant actually undergoes the surgery, he remains P&S.

The Workers' Compensation Appeals Board ultimately sent this case back to the trial level for further development of the record, but not without offering this guidance: “If applicant’s condition, at present, is P&S, and it is found that the elbow surgery is necessary, applicant would not become temporarily totally disabled on the date of surgery, as argued by defendant. He would be temporarily totally disabled as of the date that reporting physician determined that the elbow surgery was appropriate. Therefore, under those circumstances, the issue would be, at what time did applicant’s condition warrant the elbow surgery. If applicant does not undergo the surgery, the issue would be moot.”

Reading this suggests that a defendant is right to deny temporary disability benefits until applicant actually undergoes surgery, but then should retroactively pay benefits from the date of surgery back to … when? When does the surgical procedure become warranted?

Is it when the doctor says applicant needs the surgery in a PR-2 report? Or perhaps when a request for authorization is submitted? Or maybe when utilization review recommends authorization? Or perhaps when independent medical review reverses the UR denial? 

What if UR approves the surgery but applicant “thinks” about surgery for a few months before going through with it? In Flannery v. WCAB, a writ denied case from 1997, the split panel reversed an award of TD from the date a post-P&S surgery was recommended in 1994 onward. The surgery was postponed repeatedly due to various reasons, including applicant getting sick, the doctor himself needing surgery, and applicant needing a non-industrial surgery in the interim.

We’ve all seen plenty of times the situation where a treating physician prescribes a course of treatment, it is denied by UR, and the treating physician takes the position that the applicant will not be P&S until the recommended treatment is authorized.

Well, since UR determinations are good for a year, wouldn’t that denial satisfy the definition of CCR Section 10152? (“A disability is considered permanent when the employee has reached maximal medical improvement, meaning his or her condition is well stabilized and unlikely to change substantially in the next year with or without medical treatment.”) 

At the very least, this panel opinion appears to suggest that, while TD might accrue at some point prior to surgical intervention, no TD is actually due prior to the surgery going forward.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.