The obligation to issue Temporary Disability (“TD”) benefits flows from the date of the employer’s knowledge of injury and disability. Generally, this follows the receipt of a medical report where the applicant is deemed temporarily totally or partially disabled. However, the applicant’s entitlement to TD benefits is not always clear and can become disputed. Below are some considerations that must be kept in mind when disputing entitlement to TD.
Is the entitlement to TD benefits supported by substantial medical evidence?
An applicant’s TD status requires medical determination. Absent evidence to the contrary, a trier of fact will rely on the treater’s opinion, assuming it is substantial medical evidence. A report will not likely be considered substantial medical evidence where the evaluator:
relied upon an incomplete or inaccurate history;
relied upon speculation and surmise;
failed to justify their opinion; or,
exceeded the scope of their expertise.
When the substantiality of a medical opinion is questioned, a timely objection must be lodged. This opens the door to the panel process and aids in preserving the basis for a TD overpayment credit petition. Failure to timely object delays TD termination and weakens the credit argument, where the medical opinion was later shown to be wrong.
Have benefits or a delay letter been issued timely?
Defendants are obligated to issue timely TD benefits. Timely benefits reduce unnecessary litigation costs and lessen the financial struggles of an applicant. However, when the TD status is disputed, a delay letter must be issued. This gives an opportunity to conduct the relevant discovery needed to clarify the issue while avoiding penalties.
Where are you in the discovery process?
Following the report of injury, discovery must be initiated immediately to gather and preserve all witness statements and relevant evidence. With this, the substantiality of the medical reporting can be objectively determined.
A deposition will also further the discovery effort greatly and may be used to clarify present and future TD disputes. This is evidenced by an applicant who testifies their retirement from the open labor market was unrelated to their injury. Such testimony coupled with their resignation letter may obviate the obligation to issue TD benefits.
The discovery can then be presented to the evaluators or trier of fact to resolve further issues.
Should you send an interrogatory to the treater?
An interrogatory can be a cost-effective clarification seeking tool. For the best chance at a substantive response, the dispute must be clearly and simply laid out. Should the treater fail to answer the interrogatory or provides a response without substance, a cross-examination or a medical-legal evaluation may be beneficial.
Is cross-examining the treater necessary?
Cross-examining the treater creates a clear record and may ultimately resolve the disputed issue. However, there is always a risk the treater will refuse to concede a point and worsens the dispute. Thus, evaluation by a QME or AME may be more productive.
Is it time to move forward with a medical-legal evaluation?
In cases where the dispute remains, the QME or AME is necessary to provide an objective medical opinion on the issue. A detailed position statement, enclosing all relevant evidence, with the dispute presented in a clear concise manner is the best way to ensure a substantive response.
Once the substantive report is issued, it may be used to clarify the dispute and potentially rebut the treater’s opinion.
Is all this effort worth it?
Before any action is taken, the value of the potential dispute must be weighed against the litigation and discovery cost needed to resolve it. Counsel and their clients must maintain an open dialogue about how disputes are handled along with the general direction of the case. This ensures that the case moves forward smoothly with a reduction of unforeseen discovery or litigation costs.
Conclusion
Disputes pertaining to the applicant’s entitlement to TD benefits do arise from time to time. These disputes can lead parties down a protracted rabbit hole of litigation. However, if the issues are timely addressed with open communication, the likelihood of costly drawn-out litigation decreases considerably.
This post provides a very brief overview of the considerations made when challenging temporary disability benefits. Each case is different and therefore, due consideration should be given to the specific facts. For more information and a detailed review of your case, contact Naveed Karbassyoon at: NaveedK@KarbassyoonLaw.com or by telephone at: (949) 617-1757.