An injured worker who refused to go to a doctor’s appointment scheduled by the workers’ comp insurance carrier is still entitled to temporary total disability (TTD) benefits, according to a state court.
In Victory Insurance Company v. Andell, the Workers’ Compensation Court of the State of Montana found that the worker’s refusal to go to the appointment was justified because the treating neurosurgeon had already determined he couldn’t return to work.
Further, a lumbar fusion surgery had been scheduled, so the appointment with the insurance provider’s doctor would have been superfluous.
‘Slow, steady recovery, still not ready for work’
On July 9, 2021, the worker suffered a work-related injury to his lumbar spine. The employer was insured by Victory Insurance Company, which accepted liability for the injury.
The worker began treatment with a neurosurgeon who performed two surgeries on his lumbar spine. On March 23, 2022, the neurosurgeon noted the worker was making “a slow, steady recovery” but “does not appear ready to return to work.” The neurosurgeon said he’d defer to the worker’s treating physician regarding work-related issues. He indicated on the paperwork that the worker was not released back to work.
An incorrect assumption
Victory assumed the neurosurgeon was no longer treating the worker, failing to realize that the neurosurgeon told the worker that if physical therapy didn’t work, then a fusion surgery would be the next step. The worker continued with physical therapy, but by May 3, 2022, the physical therapist dismissed him because the exercises were causing extreme pain levels.
On May 10, 2022, the worker received a letter from Victory, saying it scheduled an appointment for him with another physician who was to be established as his new treating doctor and who would address work restrictions. The worker objected to the appointment, arguing he was still seeing the neurosurgeon and required a third surgery. He didn’t attend the scheduled appointment with the new doctor.
A week later, Victory notified the worker his TTD benefits were going to be terminated because he failed to go to the appointment. The worker petitioned the Montana Department of Labor & Industry (DLI) to order Victory to pay interim TTD benefits, which DLI granted.
Surgeon ‘unequivocally stated’ return wasn’t possible
A compliance specialist with DLI noted that the only purpose for the missed appointment was to address return-to-work restrictions. The specialist found Victory had no grounds to terminate the TTD benefits with surgery pending, since the work restrictions couldn’t be addressed.
Victory appealed the decision and the Workers’ Compensation Court found in favor of the worker since the neurosurgeon, who mentioned deferring to the treating physician for specific work restrictions, unequivocally stated the worker was unable to return to work.
The court agreed with DLI that there was “no purpose for the appointment with the physician whom the insurer had recently designated as his treating physician because she could not possibly say what the claimant’s return-to-work restrictions will be.”
