Home > Uncategorized > Go Time! Go Case Says TD and PD from Self-Procured

Go Time! Go Case Says TD and PD from Self-Procured

Happy Wednesday, dear readers… or, at least, it WOULD be if I had a better case to bring to your attention.

The matter is that of Sutter Solano Medical Center v. WCAB, a recent writ denied case.  The facts are fairly straight forward – applicant had an admitted injury to the neck.  Applicant’s PTP submitted an RFA for neck surgery, which Utilization Review denied.  Applicant then self-procured the medical treatment and demanded increased PD and TD resulting from the surgery.

If you are curious about the results of this issue, imagine your humble blogger’s normally grimacing face going into extra-grimace mode.  The WCJ and the WCAB both held that UR might shield defendant from liability for the medical procedure costs, but the resulting PD and TD claims are not defeated by Utilization Review.

In the immortal words of Pedro Chespirito, “no me gusta.”

The WCJ cited a 2009 panel decision (Barela v. Leprino Foods (ADJ3226482)) for the rule that UR does not bar PD or TD, only liability for medical treatment.

The panel added to the reasoning by noting that there are generally two methods of obtaining treatment.  That treatment provided by the employer, subject to UR and IMR, is held to the standard of being reasonably necessary to cure or relieve from the effects of the injury.  However, the panel noted that this standard is not applied to self-procured medical treatment.  Which, of course, your humble blogger reads to means that an injured worker can seek out and pay for unreasonable methods of treatment – and the unreasonable aspect of the treatment can both be as to the method and the risks involved.

The panel decision concludes by inviting the legislature to get involved if the legislative intent is to allow UR denials of medical treatment authorization to extend to resulting TD and PD.  As much as your humble blogger would like such a legislative amendment, in my limited experience, seeking legislation is poking the bear – the “reforms” that come from legislation end up create more litigation (which is great for defense attorneys like me!) but also creating more exceptions, loopholes, limitations, and harm for employers.

After all, the reform of SB-863 essentially enshrined Almaraz/Guzman as part of the law rather than repealing it.  And, even though Ogilvie is essentially dead for post 1/1/13 dates of injury with the elimination of diminished future earnings capacity, we now have a body of law holding that a “forceful blow”, like a slip-and-fall, is an act of violence.

Anywho, there is sufficient panel authority out there to support this conclusion, but, conceptually, your humble blogger has a hard time following the logic.  UR has made a determination that a particular method of treatment is not reasonably necessary.  If the applicant proceeds with this treatment isn’t it, legally speaking, unreasonable?

Additionally, why isn’t this being treated as the functional equivalent of a non-industrial injury?  Had applicant sustained another injury subsequent to being found P&S, even a non-industrial injury, wouldn’t we expect the evaluators to apportion accordingly?  If Applicant had X permanent disability before the surgery (or the pretend non-industrial injury) and now has Y permanent disability, shouldn’t her level of PD still be X?

One of the points of reasoning in reaching this conclusion was that the PTP and the AME both agreed that applicant’s surgery was necessary.  Isn’t that the point of UR – to determine if the treatment is thus?  AMEs are even prohibited from addressing matters reserved for UR and IMR, as per Labor Code section 4062.2(f).

In short, what is to prevent an employee from taking unnecessary medical treatment risks, and forcing the defendant to bear the costs of failed or even technically successful procedures?

In the instant case, applicant underwent a serious surgical procedure at her own expense, and the medical professionals involved, whatever the weight or relevance of their opinions as to the proceedings, reasonably opined that the procedure was necessary.

Now let your imagination wander away from this scenario and look at some… “other” forms of treatment.  In Ukraine (or, the Ukraine for my American friends) people are treated with radon baths for orthopedic injuries.  Would the resulting lung cancer and related benefits be the responsibility of a defendant?

I bet a little bit of google digging would find all sorts of… unusual… methods of treatment, including administering snake-bites, prolonged “faith healing” including refusal of any medicine in the interim, or exorcism.  Are defendants supposed to be on the hook for all the fallout from these things?  Believe me, dear readers, I have had cases where the PTP or QME decides that the radon baths are “reasonable” even though there was never an RFA, let alone UR and IMR.

So, what do you think, dear readers – is it worth it to open Pandora’s Box with new legislation on this?  Or is this a rarity and applicants will rarely self-procure?

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  1. Ira B. Fushman MD
    January 24th, 2018 at 10:43 | #1

    Huge problem. Applicants frequently self procure treatment. In my field of internal medicine a notorious example is non approved antibiotic treatment for alleged “late” Lyme disease with potential for serious drug side effects

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