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California: Court Upholds W.C.A.B. Ruling Excluding Medical Legal TD From Labor Code § 4656 Window

June 27, 2012 (6 min read)
The 3rd Appellate District has resolved a one of the issues that has been frequently discussed but almost never raised (at least in my experience) regarding payment of TTD during the period between 4/19/2004 and 12/31/2007 when the first payment of TD triggered a 2 year window for payment of TTD benefits.
In Meeks Building Center v W.C.A.B. (Najjar) the applicant was seen by a QME on September 11, 2007. Consistent with the obligation under Labor Code § 4600(e)(1), Zurich Insurance Company paid Mr. Najjar 1 day of TD for lost wages to attend the exam. The QME did not take the employee off work and he continued with his regular job. However in 2009 the employee was determined to be unable to work and temporarily disabled. TD benefits commenced in March of 2009 and were terminated on September 8, 2009 at which time the carrier terminated benefits asserting the payment in September, 2007 was the “first payment” of TTD thus triggering the 2 year window period for payment of benefits under Labor Code § 4565(c)(1).
Applicant retained counsel and the matter was tried before the W.C.A.B. The trial judge, somewhat reluctantly, sided with defendant concluding the language of Labor Code § 4656 and 4600 used Temporary disability interchangeably. The WCJ denied the claim for additional TD. However the W.C.A.B. reversed the WCJ holding that payment of TD for a medical legal exam did not trigger the 2 year window.
Defendant appealed and the 3rd District agreed to hear the case. However the Court declined to reverse the W.C.A.B. and upheld the Board’s ruling on the TTD issue in a published decision. The Courts rational was fairly straightforward. Citing multiple case law decisions, including the California Supreme Court decision in Dept of Rehabilitation v W.C.A.B. (Lauher), (2003) 30 Cal.4th 1281, the Court held payment of TD benefits for a medical examination was not a result of “disability” and therefore was not really payment of Temporary Disability benefits under Labor Code § 4656:
“By contrast, here, as of September 11, 2007, Najjar’s injuries had not caused temporary disability; that is, his injuries had not incapacitated him or restricted him in any way from performing his usual work duties and he was not missing work because of his injuries. The only reason he lost time from work on September 11, 2007, was to attend a qualified medical evaluation to resolve this claim.
         Section 4600 delineates the requirements of the employer in providing treatment for the injured worker and the injured worker’s rights with respect to that treatment. The section also provides that if the injured worker submits to a requested qualified medical examination to resolve a claim, the worker is entitled “in addition to all other benefits herein provided, all reasonable expenses of transportation, meals, and lodging incident to reporting for the examination, together with one day of temporary disability indemnity for each day of wages lost in submitting to the examination.” (§ 4600, subd. (e)(1).) The costs and expenses incurred incidental to the production of a medical report to prove or disprove a contested claim are medical-legal expenses. (§ 4620, subd. (a).) There is no requirement that an employee be disabled in order to qualify for medical-legal benefits. There need not even be a finding of an industrial injury for the worker to qualify for these benefits, as even “an unsuccessful claimant for workers’ compensation benefits may recover medical-legal costs”. …”  
The Court also appears to have devised a public policy argument to support its conclusion based in part upon Labor Code § 3202 (liberal construction):
If we were to interpret the statutes as defendant would have us do, the temporary disability limitations period on many cases would start whenever the employee attended a requested medical-legal evaluation, irrespective of whether or not the injured worker required time off work due to the injury. This would seriously disadvantage a worker in a case such as this one, where the injured worker continues to work through injury and does not suffer an incapacity to work until much later in the process. In addition, such a conclusion would permit the employer or insurer to artificially trigger the cap period on temporary disability benefits by setting a medical-legal evaluation. This cannot have been the Legislature’s purpose.
The W.C.A.B.’s decision was upheld by the Court.
While it was probably worthwhile for the defendant to take the approach it did (especially after getting a favorable ruling from a WCJ) the ultimate holding by the W.C.A.B. and the Appellate Court is certainly not surprising. I recall when the 2 year window period was passed by the Legislature as part of SB 899, there was considerable speculation as to whether payment of TD for a medical legal exam would trigger the 2 year window cap. I think most felt this was not the Legislature’s intent but there appeared to be some basis for considering the approach valid. For the most part, the issue does not arise as it is unusual for an employ to attend a medical legal exam without TD being an issue and then become Temporarily Disabled close to the 2 year limit.
Certainly for injuries after 1/1/08, this issue is much more limited as the first payment of TTD does not carry the same significance. However it does also suggest that in making the calculations for payment of total TTD benefits, payment of TD for medical legal exams is not to be counted. The Court’s rational would apply to post 1/1/08 cases where that specific issue may have been raise. Since we are now approaching 5 years from the change from the window period calculation to aggregate limits (and given the 5 year limitation on TTD overall) there are not likely to be a lot of cases left over where the application of the 2 year window is going to be a serious issue. 

© Copyright 2012 Richard M. Jacobsmeyer. All rights reserved. Reprinted with permission.
Shaw Jacobsmeyer Crain Claffey LLP
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