Cost of Delay by Txing Dr re Report Born by Carrier

Sunday, September 15, 2002 | 0

The injured employee is determined P&S by his/her treating physician on 5/15/02 but the examiner doesn't get the report until 9/15/02. TTD benefits were paid through 9/15/02 so the examiner notifies the employee that TTD benefits will terminate effective 5/14/02, PDA's will commence 5/15/02 and then begins the (tedious) process of converting those payments in the system. Applicant's attorney objects, demanding payment of VRMA at the TD rate per L.C. 4642(a) because s/he checked the VR box on the Application. The examiner refuses to start VRMA payments, pointing out that it was the applicant-selected treating physician who delayed sending his P&S report for four months. Which benefit is owed to the employee - PDA's or VRMA at the TD rate (outside the cap)?

In Gallagher Bassett Services, Inc., Devereaux Foundation, PSI v. WCAB (Lewis) (2001) 66 CCC 520 (writ denied), the WCAB determined that the cost of a delay by the treating physician in providing a P&S report must be borne by the employer. This decision is based on CCR 10109, which requires the employer to conduct the various investigations necessary to timely manage the case, including regular calls to the physician's office to determine if the employee is TTD or P&S.

What if the physician serves a copy of the report on applicant's attorney only and the attorney fails to serve a copy of the report to the carrier for another four months? The attorney has the same obligation to timely file and serve reports that the carrier does. His or her failure to meet this obligation doesn't relieve the examiner of the CCR section 10109 obligation - but it does provide an opportunity to negotiate the VRMA issue.

Note that Lewis is a "writ denied" case, which means it cannot be cited in proceedings before the WCAB. In this instance, however, it is a pretty good indication how the Board is likely to react if presented with similar circumstances.

Contributed by vocational rehabilitation expert Allan Leno, Leno & Associates, (818) 370-8859 allanleno@leno-assoc.com.