TD/Wage Loss for Med Legal After P&S Status

Sunday, November 7, 2004 | 0

As if often the case, the WorkCompCentral Forums bring forth issues that are current and ripe for discussion, and present material that offers both the applicant and defense bar ongoing education about the California workers' compensation system. In a recent discussion, the question was raised whether an applicant, who goes to an Agreed Medical Evaluation during regular work hours gets remunerated in the form of either one day of T.T.D indemnity or one day of lost salary. The short answer is probably, but how do you get there?

Last year's decision in the California Supreme Court case of Dept of Rehab vs. WCAB (Lauher), 30 Cal. 4th 1281 , WCC 29402003 CA (2003), in a back handed manner, answers that question.

The Court in Lauher ruled that an applicant who goes for treatment is not entitled to workers' compensation remuneration if the treatment is after the injured worker becomes permanent and stationary. s

But, the case distinguishes between appointments for treatment and medical-legal examinations.

First, Labor Code section 4621 provides, in part:

d) Where, at the request of the employer, the employer's insurance carrier, the administrative director, the appeals board, or a referee, the employee submits to examination by a physician, he or she shall be entitled to receive, in addition to all other benefits herein provided, all reasonable expenses of transportation, meals, and lodging incident to reporting for the examination to the same extent and manner as provided for in Section 4600. (Emphasis added.)

Section 4621 specifically refers to medical legal exams and makes no mention of temporary disability indemnity or wages for time off work to attend the exam.

General rules of statutory interpretation would suggest that 4621 would govern over the more general section, 4600, because 4621 is more specific than 4600. Thus, one would therefore think that TTD is not owed.

But dicta in the Lauher case indicates a distinction between medical legal exams and missing time from work for medical care:

"..Contrary to the views of both Lauher and the WCJ below, this specific statutory benefit is not a broad obligation to pay TDI to replace an employee's wages for time away from work while pursuing medical treatment for a permanent and stationary injury. Rather, this benefit is in the nature of a medical-legal benefit, reimbursing the employee for his time when requested to submit to a medical examination to resolve a compensation claim. Lauher cannot take advantage of this benefit, both because his semi-regular treatment with Dr. Houts is not undertaken at the request of one of the enumerated entities, such as his employer or SCIF, and because his appointments with Dr. Houts are for continuing treatment, not for an examination' connected with resolving an application for benefits."

"...

"Such an evaluation would typically occur during the healing period when a worker would claim entitlement to TDI, but it could also occur at other times, for example, when the employee's ability to return to work is undisputed but disagreement exists over the degree of the permanent injury, in which case further medical evaluations may be necessary. Nevertheless, although Labor Code section 4600 specifically provides for payment of transportation expenses and temporary disability when the evaluation is performed at the request of, for example, the employer or the employer's insurer, neither this clause of rule 10111.1(a)(4) nor Labor Code section 4600 authorizes TDI or wage replacement where, as here, an employee seeks medical treatment for a permanent injury."

Thus, it appears the Supreme Court in Lauher made a distinction between TTD for medical-legal exams performed at the request of an employer/carrier or adjudicative body, separate and apart from medical appointments for treatment.

Certainly, though, this is not the holding of Lauher, and one cannot rely specifically on the case for the proposition that expenses attendant to medical-legal exams after permanent and stationary status are owed. But, the dicta in Lauher is certainly a strong argument.

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