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Applicant Entitled to Additional Period of Temporary Disability Following Self-Procured Medical Treatment

HARRIS vs. NORDSTROM, INC.

(2015) 2015 Cal. Wrk. Comp P.D. Lexis 559

 

Applicant sustained injury to her right shoulder and spine on May 25, 2010 while working as a sales associate.

The applicant underwent shoulder surgery on August 11, 2011. However, the surgery did not alleviate her symptoms. Her treating physician referred her for a consultation with another surgeon who diagnosed the applicant with right shoulder rhomboid detachment. He recommended surgery to correct the detachment on December 15, 2014.

The Request for Authorization was submitted for Utilization Review and the treatment was denied on December 22, 2014. Applicant requested Independent Medical Review and the Utilization Review decision was upheld.

The applicant was evaluated by a qualified medical examiner on March 11, 2015. The QME’s report stated that if the applicant did not obtain surgery to reattach the rhomboid, she would be considered MMI as of March 11, 2015.

On May 13, 2015, the applicant obtained the shoulder surgery using her private medical insurance. The applicant claimed additional temporary disability for approximately 7 months following the shoulder surgery. The defendant denied liability for additional temporary disability based on the Utilization Review and IMR decisions.

Following trial on the issue of temporary disability, the Workers’ Compensation Judge found that the applicant’s surgery was not medically necessary based on the Utilization Review and Independent Medical Review decisions. Therefore, she was not entitled to additional temporary disability following the self-procured procedure.

Applicant filed a Petition for Reconsideration which was granted.

The Board noted that the issue of whether a defendant is liable to provide medical treatment is separate from the issue of defendant’s liability for temporary disability. Liability for medical treatment arises under Labor Code § 4600 which requires a defendant to provide reasonable medical care necessary to cure or relieve the effects of the industrial injury. However, Labor Code § 4605 allows an employee to select any treatment or physician he or she chooses at his or her own expense.

With regard to temporary disability, there is no statute that distinguishes between temporary disability resulting from treatment provided by the employer under Labor Code § 4600 and self-procured treatment under § 4605. Therefore, while the defendant is not required to pay for medical treatment that was properly denied by Utilization Review and Independent Medical Review, the applicant is free to obtain that treatment on her own. If there is a period of temporary disability following such treatment, the defendant is still liable because the employee is temporarily unable to work during a period of medical recovery following treatment for an industrial injury.