California: Retroactive Approval of Denied Treatment Causing Increased Temporary Disability and Permanent Disability

Go v. Sutter Solano Medical Center is one of series of panel cases addressing the question of whether an employee can obtain TD and PD benefits based on medical treatment that was denied through UR and IMR. As the panel in Go points out, in the context of a UR/IMR decision denying treatment that is subsequently self-procured, a prior panel case, Barela [2009 Cal. Wrk. Comp. P.D. LEXIS 482], found that that the WCAB could award TD and PD based on the denied treatment while Ribeiro [80 Cal. Comp. Cases 1222 (writ den.)] did not. The panel here also emphasized a second panel decision, Bucio [2015 Cal. Wrk. Comp. P.D. LEXIS 123], which also supported the award of benefits.

What is really most interesting in this particular case is that it highlights an undefined “reasonableness” standard applicable to self-procured obtained through Labor Code section 4065. The panel here basically says that we can’t deny an employee’s right to self-procure treatment under Labor Code section 4605, and we can’t deny that the thresholds applied to treatment requested pursuant to Labor Code section 4600 don’t apply to self-procured treatment under 4605. As the only evidence that exists post-surgery indicates that he surgery was successful, in retrospect we have to conclude that the treatment, was, in fact, reasonable. Each of these cases outcomes, actually, follows the outcome of the denied treatment. In other words, where the treatment worked, the panel found that the self-procured treatment was reasonable and upheld the award of both TD and PD in connection with the denied treatment.

There is obviously a disconnect between the requirements for “reasonable and necessary” treatment under Labor Code section 4600 (the MTUS, hierarchy of authority, etc.) and the “reasonableness” standard applied to self-procured treatment under section 4605. Obviously, from the number of panel cases that have addressed this issue, it is very apparent that there are a number of cases where treatment did not satisfy Labor Code section 4600’s requirements that ultimately worked. In fact, it is this schism that the panel in Go is addressing when the panel concludes by saying that it is ultimately going to be up to the Legislature to determine if the same standards should apply to sections 4600 and 4605.

Read the Go noteworthy panel decision.

Read the WCJ Report in Go.

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