Who Can Determine Temporary Total Disability Eligibility? Understanding the Role of Physicians in Workers' Compensation

Introduction

When you're injured on the job in California, one of the most critical benefits you may be entitled to is Temporary Total Disability (TTD) payments. These benefits replace lost wages while you're unable to work during your recovery period. However, a common question that arises for both injured workers and attorneys is: Which physicians are legally authorized to determine TTD eligibility?

This question becomes particularly important when dealing with Medical Provider Networks (MPNs), Qualified Medical Evaluators (QMEs), and physicians outside the workers' compensation system. Today, we'll clarify this often-misunderstood area of workers' compensation law.

The Legal Definition of "Physician" for TTD Determination

Under California law, not just any healthcare provider can determine TTD eligibility. LC § 3209.3 defines a "physician" as:

• Physicians and surgeons holding an M.D. or D.O. degree
• Psychologists
• Optometrists
• Dentists
• Podiatrists
• Chiropractic practitioners

However, despite being included in this definition, acupuncturists and marriage, family, and child counselors are statutorily prohibited from determining TTD eligibility. Additionally, while nurse practitioners and physician assistants may provide medical treatment and can authorize time off work for up to three calendar days, they cannot determine temporary disability. In these cases, the supervising physician must make the determination and sign the report (LC § 3209.10).

Does the Physician Need to Be from the MPN?

One of the most common misconceptions is that only physicians within an employer's Medical Provider Network (MPN) can make valid TTD determinations. This is not the case.

The short answer is no - a physician does not have to be from the MPN to make a valid TTD determination. Here's why:

1. Self-Procured Treatment: An employee has the right under LC § 4605 to self-procure medical treatment at their own expense, including from physicians outside the MPN. The appeals board has held that it can rely on the opinion of an applicant's treating physician to award temporary disability, even when that physician is outside the defendant's MPN, particularly in cases where the claim was initially denied.

2. Non-California Physicians: The Court of Appeal has held that LC § 3209.3 does not exclude physicians licensed in another state or country. When medical treatment and reports are procured from such physicians in accordance with LC § 4600, the employer is responsible for the reasonable expense of such treatment and medical-legal costs.

3. Claim Denial Situations: When a claim is denied, the employee often has no choice but to seek treatment outside the MPN. In these cases, the non-MPN physician's opinion regarding TTD status can be valid for determining benefits.

Can QMEs and AMEs Determine TTD Eligibility?

Yes, Qualified Medical Evaluators (QMEs) and Agreed Medical Evaluators (AMEs) can make determinations regarding temporary disability status. This is supported by several findings in workers' compensation case law:

1. QME Authority: The appeals board has held that a QME is authorized and required to address periods of temporary disability. In one case, the board found that an applicant was entitled to temporary disability benefits when, after being discharged by a treating physician, a QME reported that the applicant had temporary work restrictions that were not accommodated by the employer.

2. Medical-Legal Process: When there is a dispute over a medical determination made by the primary treating physician, including a determination that the employee should be released from care, the dispute shall be resolved under the applicable medical-legal procedures established in LC § 4060, LC § 4061, or LC § 4062. This process often involves obtaining an opinion from a QME.

3. Post-Discharge Determinations: After being discharged by a treating physician, if the applicant complies with the procedure set forth in LC § 4061 and LC § 4062, and the QME determines that further medical treatment is warranted or that the applicant has work restrictions, the applicant may be entitled to temporary disability benefits.

Is a Permanent and Stationary Date Alone Sufficient for TTD Determination?

A common misconception is that simply establishing a permanent and stationary (P&S) date is sufficient to determine the timeframe for TTD eligibility. This is not the case.

While a P&S date is critical for establishing the end of TTD eligibility, proper documentation of the entire TTD period requires more specific evidence and discussion:

1. Complete Timeframe Documentation: Medical evidence must establish:

   • The beginning date of disability
   • The ongoing nature of the disability throughout the claimed period
   • The end date of temporary disability (typically the P&S date)

2. P&S Date as End of TTD: The California Supreme Court in Department of Rehabilitation/State of California v. WCAB (Lauher) held that an employer's obligation to pay temporary disability indemnity ends when the employee's medical condition achieves permanent and stationary status. However, this alone doesn't establish the entire TTD period.

3. Specific Reporting Requirements: When the primary treating physician determines that the employee's condition is permanent and stationary, the physician must report any findings concerning the existence and extent of permanent impairment and limitations within 20 days from the date of examination.

The Importance of Proper TTD Timeframe Documentation

Simply having a P&S date without proper documentation of the entire TTD period can lead to significant legal issues:

1. Burden of Proof Issues: The applicant bears the initial burden of proving entitlement to temporary disability benefits, including the specific period of disability. This requires substantial medical evidence documenting the entire period for which TTD is claimed, not just the end date.

2. Retroactive Opinions May Be Insufficient: In Cedars-Sinai Medical Center v. WCAB (Modlin), the appeals board found that an AME's retroactive declaration that the applicant was P&S carried less evidentiary weight than his contemporaneous medical reporting.

3. Credit for Overpayment Disputes: In J.C. Penney Co. v. WCAB (Edwards), the Court of Appeal held that an employer asserting credit for overpayment of TTD must timely object to a treating physician's report of continued temporary disability under LC § 4062. Failure to do so may limit or eliminate the right to credit.

4. Multiple Body Parts: When multiple body parts are injured, each may stabilize on a different date. However, there is only one P&S date for an injury - when the last body part becomes permanent and stationary. Evidence that one body part is P&S will not warrant termination of TTD if the employee remains temporarily disabled due to other injured body parts.

Evidence Requirements for TTD Eligibility

Regardless of which physician makes the determination, certain evidence requirements must be met for TTD eligibility:

1. Substantial Medical Evidence: The determination must be based on substantial medical evidence from a qualified physician. A doctor's opinion that is not substantial evidence cannot support an award of TTD.

2. Temporary Nature: There must be evidence that the disability is temporary rather than permanent, meaning the condition is reasonably expected to improve with proper medical treatment.

3. Industrial Causation: Documentation must establish that the disability resulted from a work-related injury or illness.

4. Actual Wage Loss: There must be evidence of actual wage loss during the period for which TTD is claimed.

5. Connection Between Disability and Wage Loss: Evidence must establish that the wage loss is directly attributable to the work-related disability.

Resolving Conflicts Between Physician Opinions

When there are conflicting opinions between physicians regarding TTD status, the resolution typically follows these pathways:

1. Medical-Legal Process: If either party disputes a physician's opinion on TTD eligibility, they generally must resort to the medical-legal process for resolution. This typically involves obtaining an evaluation from a QME or AME.

2. Timely Objections: An employer asserting credit for overpayment of TTD must timely object to a treating physician's report of continued temporary disability under LC § 4062. Failure to do so may limit or eliminate the right to credit.

3. Substantial Evidence Standard: The appeals board will evaluate which medical opinion constitutes substantial evidence. Factors considered include whether the opinion is based on an adequate medical history, thorough examination, and sound reasoning.

Terminating TTD Benefits

When seeking to terminate TTD benefits that have been awarded:

1. Petition to Terminate: A petition to terminate liability for TTD indemnity must be filed on form DWC 46, except when TTD is terminated by operation of law (such as when the 104-week limit under LC § 4656 is reached).

2. Notice Requirements: The employer must advise the applicant of the ending of indemnity payments and the reason, together with an accounting of all temporary disability indemnity paid, including dates and amounts paid and any related penalties.

3. Consequences of Failure to File: An employer may be penalized under LC § 5814 for unilaterally terminating temporary disability after an award without first filing a petition to terminate benefits.

Practical Implications for Injured Workers and Attorneys

For Injured Workers:

1. Know Your Rights: You have the right to seek treatment outside the MPN at your own expense, and these physicians' opinions regarding TTD can be valid.

2. QME/AME Process: If your treating physician's opinion on your disability status is disputed, you have the right to go through the QME/AME process to resolve the dispute.

3. Documentation: Ensure your physician thoroughly documents your condition, work restrictions, and the connection between your injury and inability to work throughout the entire TTD period, not just at the P&S determination.

For Attorneys:

1. Evaluate Medical Evidence: Carefully evaluate whether the medical evidence supporting TTD eligibility meets the substantial evidence standard and properly documents the entire TTD period.

2. Timely Objections: If representing employers, ensure timely objections to treating physician reports to preserve the right to credit for any potential overpayment.

3. Strategic Use of QMEs/AMEs: When there are disputes about TTD eligibility, strategically use the QME/AME process to resolve these issues.

4. Non-MPN Physicians: Don't automatically discount opinions from non-MPN physicians, especially in denied claims or when the employee has properly self-procured treatment.

5. P&S Date Alone Is Insufficient: Remember that a P&S date alone is not sufficient to establish the TTD period. Ensure there is proper documentation of the entire disability timeframe.

Conclusion

The determination of TTD eligibility is not limited to physicians within an employer's MPN. Qualified Medical Evaluators, Agreed Medical Evaluators, and even physicians outside the workers' compensation system can make valid TTD determinations, provided they meet the definition of "physician" under LC § 3209.3 and their opinions constitute substantial medical evidence.

Additionally, a permanent and stationary date alone is not sufficient to establish the TTD timeframe. Proper documentation must include evidence of when the disability began, its ongoing nature, and when it ended, with specific discussion of the entire period.

Understanding these rules can help injured workers secure the benefits they're entitled to and assist attorneys in effectively advocating for their clients. If you have questions about TTD eligibility or need assistance with your workers' compensation claim, our experienced team is here to help navigate these complex issues.

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This blog post is for informational purposes only and does not constitute legal advice. For specific guidance on your workers' compensation case, please contact our office for a consultation.