So, dear readers, your humble blogger has a question for you – when an applicant undergoes a medical procedure meant to cure or relieve him (or her) of the effects of his admitted industrial injury, but fails to go through the treatment authorization procedures laid out in the Labor Code and Code of Regulations, is the employer/insurer liable for the temporary disability period resulting from said procedure?

That was the issue in the somewhat recent (there are but so many days in a week, after all, dear readers – one cannot get to all the cases and stories of note!) case of Michael Moser  v. Valli Construction.  Applicant underwent spinal surgery, and his treating physicians anticipated a permanent and stationary date one year after the surgery.  However, applicant became convinced that the metal implant was causing an allergic reaction (as had been the case with two unrelated metal implants in his foot and leg as part of treatment for past injuries).

He complained of constant and extreme pain, and insisted on its removal.

Without seeking authorization from defendant for the removal surgery, applicant underwent the procedure less than a year from his original operation, and had the metal removed.  He then claimed temporary disability benefits while he was recovering from the second surgery.

Naturally, defendant had a problem with this.

Denying liability for temporary disability after the second surgery, defendant rolled up its proverbial sleeves and took it to the street… before taking it to the WCAB, and, upon finding a workers’ compensation Judge less than persuaded by defendant’s position, to the commissioners on reconsideration.

Unfortunately, the WCAB ruled that temporary disability was due at least until the anticipated date of permanent and stationary status as per the initial surgery.  But as for the rest, the defendant was still on the hook.  Why?

Well, defendant correctly pointed out that Labor Code section 4062(b) specifically shields defendants from liability for TTD resulting from a procedure performed prior to the completion of the second opinion process.  But applicant’s argument pointed instead to California Code of Regulations section 9788.01(L)(4), which specifically excluded from the definition of “spinal surgery” any procedure which is required because of bona fide emergency.

The WCAB held that, because the medical evidence supported applicant’s position that he was, in fact, facing a bona fide emergency situation (as defined by Labor Code section 4610(g)(2); “the employee’s condition is such that the employee faces an imminent and serious threat to his or her health…”) the shield of section 4062(b) does not apply.

So, the employer was on the hook for the temporary disability payments until applicant recovered from his unauthorized surgery.

Your humble blogger understands that emergency situations arise and the legendary swiftness of workers’ compensation procedures is not conductive to truly necessary treatment which may be required from time to time.  But… here’s what your humble blogger doesn’t understand about this case:

• the applicant was aware of the metal implants he was receiving in his spine prior to the first surgery, and was aware that he had reacted in exactly the same way to two prior metal implants, and that his symptoms resolved after those two prior metal implants had been removed;
• He first began complaining of this allergic reaction almost two months after his surgery;
• He was evaluated for the second surgery almost ten months after his first surgery, and underwent the surgery more than a week later.

Why was defendant kept in the dark about this?  Applicant finally underwent the second procedure ten months after the first – ample time for the spinal surgery utilization review and second opinion process to be undertaken if not completed.  What’s more, applicant was well aware of how he reacted to metal implants, but had not informed his treating physician of the fact.

Your humble blogger submits to you, dear readers, that applicant himself created the “emergency,” and that if he would have (1) told his treating physicians of his metal allergy; or (2) immediately began the removal surgery approval process upon feeling the same symptoms he had felt after his previous two metal implants, defendant would have rightfully avoided additional liability for temporary disability.

In all likelihood, there would have been a swift removal procedure and applicant would have become permanent and stationary on or before the date previously predicted as one year from his initial spine surgery.

Although the WCAB reached the correct conclusion in terms of legal liability, there should be some correction for self-created emergencies.

Wouldn’t an employer who knowingly and intentionally exposed a worker to a substance which the employer knows will cause a severe allergy be liable for Serious and Willful misconduct penalties?  Should an employee face a reduction in benefits for the same?