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I Need to go Back to the Doctor

Robert Gruber

So your claimant is finally placed at maximum medical improvement, he has returned to work, you terminated his temporary total disability compensation, and the only issue before the Commission is permanent partial disability for the injured body part. You file a Form 21 to put your case on a glide path to closure, and then you get “that call.” It goes something like this: “listen, my guy has been having a lot of pain lately, and he wants to go back to the doctor.”  This is one of the most annoying phone calls that an employer or defense lawyer can get days before a Form 21 hearing, but we know it’s coming. Here are a couple of things to consider when you get that inevitable request.

Medical care and treatment as provided under the workers’ compensation statute is governed by S.C. Code Ann. 42-15-60. The opening sentence of this statute states:

The employer shall provide medical, surgical, hospital and other treatment, including medical and surgical supplies as reasonably may be required, for a period not exceeding 10 weeks from the date of an injury, to affect a cure or give relief and for an additional time as in the judgment of the Commission will tend to lessen the period of disability as evidenced by expert medical evidence stated to a reasonable degree of medical certainty.

So your first argument to this request for additional medical care should be that, unless it is recommended by a doctor, you will not provide it. This is certainly an argument that you can make if you are within 10 weeks from the date of injury and perhaps even beyond 10 weeks from date of injury if the claimant is not in any way “disabled.” Examples include cases in which the claimant has seen the doctor a few times sporadically, has never been taken out of work or has never been assigned any impairment rating.  For these types of case, we recommend that you use the “no expert medical evidence” argument if the facts support it.

The second applicable sentence of Section 42-15-60 states:

During any period of disability resulting from the injury, the employer, at his own option, may continue to furnish or cause to be furnished, free of charge, the employee, and the employee shall accept, an attending physician and any medical care or treatment that is considered necessary by the attending physician unless otherwise ordered by the Commission for good cause shown.

This section could be used by the Commission as an end run around the earlier requirement for medical evidence if the claimant has (or had) some type of disability caused by the injury or the medical treatment already provided. The term “period of disability” was widely used by the Commission and the Appellate Courts as a justification for ordering additional medical treatment that would tend to “lessen the period of disability,” meaning medical treatment that would arguably make the claimant less disabled by making him more functional. This term “period of disability” has not been used as much since July 1, 2007 when the legislature amended the workers’ compensation statute; however, the older cases that use this language are still good law, and the Commission could still order additional medical care or treatment that tends to “lessen the claimant’s period of disability” in appropriate cases.

So your ability to argue against an order or award of additional medical care and treatment post MMI seems to hinge on whether or not the claimant is in some sort of “period of disability,” whatever that means. You may have a good argument in a case where a claimant has never been taken out of work and has no impairment rating as opposed to a case where a claimant has had periods of temporary total disability and/or has an impairment rating.

Alas, there are a few things that money can and should buy.  Requests for additional medical care are often no more than a claimant’s attempt to pressure the defendant into coughing up more money for a settlement, and we submit to you that the Commission tends to be very liberal in awarding additional medical care.  So when you weigh your arguments for and against additional medical care, you should also weigh the benefits of paying a little bit more money to get your case closed.