Is Defendant Liable for Payment of TD for Attendance at Medical Treatment Appointments?
A recent WCAB panel split decision says, “No,” but Commissioner Marguerite Sweeney dissented, making it possible that a similar case reviewed by a different panel of Commissioners may result in a contrary opinion.
Please note, the opinion in Renee Skelton v. Department of Motor Vehicles (2018 Cal. Wrk. Comp. P.D. LEXIS 417) has not been designated as a significant panel decision, which means you should use caution when citing this case, as the decision is not binding precedent, but will be considered by the WCAB to the extent that it finds the reasoning persuasive.
In Skelton, Applicant suffered two separate orthopedic injuries in July 2012 and July 2014, but was able to return to work full time (and for full pay) prior to her injuries becoming permanent and stationary. After returning to work, Applicant continued receiving medical treatment and was sent to PQME exams on two different occasions in 2017, with all of these appointments causing her to suffer a loss of wages.
The parties went to trial on the issues of whether Applicant is entitled to payment of temporary disability as wage loss for the dates of her medical treatment appointments and PQME exams. The WCJ issued his Findings and Order on June 1, 2018, finding that Applicant was not entitled to receive temporary disability for lost time for work for attending treatment appointments for her industrial injuries, following return-to-work.
Applicant filed a Petition for Reconsideration and because the WCJ failed to comment on whether Applicant was entitled to wage loss benefits for attending the PQME exams, he recommended Reconsideration be granted for the sole purpose of amending the Order to Award Applicant one day of temporary disability for each day of wage loss incurred to attend the PQME exams.
Commissioners Zalewski and Lowe agreed with the WCJ and his reliance on the case of Department of Rehabilitation v. WCAB (Lauher) (2003) 30 Cal.4th 1281, 1294 [68 CCC 831]. In Lauher, the California Supreme Court held that once an injury becomes permanent and stationary and/or the employee returns to work, any future benefits authorized by the workers’ compensation system are not intended as wage replacement, although the injured worker in Lauher was permanent and stationary unlike Applicant in Skelton. A similar writ-denied case was also cited (Ward v. WCAB  69 CCC 1179) for its holding that any wage loss for attending medical treatment is not compensable after an injured worker has returned to full-time work.
Commissioner Sweeney, in her dissent, argued that any discussion in Lauher about an injured worker whose injuries were not permanent and stationary but was able to return to full-time work was unnecessary to the opinion in Lauher and should not be considered precedential, and that the “summary digest” in Ward of a writ denied case was merely a recitation of dicta.
Commissioner Sweeney further reasoned that temporary disability provides interim wage replacement to an injured worker during their period of healing, and that if the injured worker is not yet permanent and stationary then they are still in that period of healing and entitled to wage replacement. Injured workers who are receiving medical treatment in order to achieve permanent and stationary status may have returned to work, but only subject to their need for medical care, making them still partially temporarily disabled. Just because this disability is not compensable while the injured worker is working and not experiencing wage loss, “when receiving necessary medical treatment during their healing period and experiencing wage loss, they should be compensated.” (Skelton, at p. 8 [dissent].)
This split decision essentially leaves the issue unresolved, and exposes defendants to possible liability in the future for temporary disability indemnity to an Applicant for medical treatment that causes them to suffer a loss of wages. Labor Code §4600(e)(1) specifically states, “When at the request of the employer, the employer’s insurer, the administrative director, the appeals board or a workers’ compensation administrative law judge, the employee submits to examination by a physician, he or she shall be entitled to receive, 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.” There is no distinction made between medical treatment appointments and medical-legal examinations and this section falls under Article 2 of Chapter 2 of the Labor Code, titled, “Medical and Hospital Treatment.”
If this wage loss is later held to be compensable temporary disability, employers and insurers are going to have to closely monitor the dates and times of an injured workers’ medical treatment appointments and keep detailed records of time (and wages) lost in order to appropriately reimburse the injured workers, but for now, we will note this as a temporary win for defendants.