I was talking workers’ comp as I often do (and all the cool kids always do) when someone offered an opinion: Utilization review denial of further treatment does not preclude a finding of temporary disability benefits.

Gregory Grinberg

Now, we all remember the Go case, in which the Workers' Compensation Appeals Board affirmed a workers' compensation judge's finding that benefits resulting from a self-procured surgery previously non-certified by UR are owing to an applicant. 

Go cited Barela v. Leprino Foods, which likewise held that a UR determination does not bar permanent or temporary disability — only liability for medical treatment. When applicant Go self-procured surgery that resulted in an increased level of PD, the WCAB required defendant to pay up.

But let’s take another spin on this. What happens when applicant is permanent and stationary but for treatment? After all, section 9785(a)(8) defines “permanent and stationary status” as when an applicant’s “condition is well stabilized, and unlikely to change substantially in the next year with or without medical treatment.”

So, what happens when UR denies treatment? Is applicant permanent and stationary because the condition is well stabilized for the next year at least? Or, in the alternative, do the cases of Go and Barela stand for the proposition that applicant is entitled to TD benefits while awaiting a reversal of UR by internal appeal, independent medical review or change of circumstances?

Well, one of the esteemed members of our workers’ compensation community provided me with a copy of the opinion in the case of Keltner v. California Guest Services.  Therein, Keltner sought reconsideration of a WCJ’s denial of TD benefits because the agreed medical evaluator had determined applicant was permanent and stationary once UR denied lumbar surgery.

The WCAB majority affirmed the WCJ:

“The AME's determination, that in the absence of surgery applicant had reached [P&S] constitutes substantial medical evidence … As the WCJ concluded, applicant’s condition meets the definition of permanent and stationary status, as there is no medical evidence that applicant’s condition is likely to substantially improve in the near future under his current medical treatment. Since the UR/IMR determination disallowing surgery is final for one year, in the absence of changed circumstances, there is no basis to award continuing [TTD].”

The dissent would have issued an order to develop the record.

So, based on Keltner, if the sole reason for applicant’s status is the denial of medical treatment, applicant is likely not entitled to TTD.

But what do you do if you can’t get your medical-legal evaluator to commit? What if your primary treating physician or your qualified medical evaluator says “Well, until the injured worker gets that surgery, I’m going to keep him on TD, so there!”

I would submit that Labor Code section 5705 holds that “[t]he burden of proof rests upon the party … holding the affirmative of the issue.” So if a party is claiming TD, wouldn’t the burden fall upon that party to show that applicant’s condition is likely to change in the next year?

Gregory Grinberg is a workers' compensation defense attorney at the Law Office of Gregory Grinberg, based in the San Francisco Bay Area. This post is reprinted with permission from Grinberg's WCDefenseCA blog.