First Quarter 2018
By: Janet Williams and Josh Stegeman
Question: In an otherwise compensable claim, when does an employer have to pay for pre-surgical testing/treatment and pay TTD benefits while such testing/treatment occurs?
Short Answer: Employers in Missouri are required to pay for pre-surgical testing and treatment expenses. In conjunction with authorization and payment of those procedures, the employer is also obligated to pay TTD during the time that the employee receives those services even if the treatment does not directly relate to the underlying work injury. However, payment is only required if the employee is given restrictions which would prevent them from returning to some kind of work.
Discussion: In Missouri, the employer has the right to choose the treating physician. Accordingly, the chosen authorized physician is typically a trusted physician who is familiar with workers’ compensation claims. If the authorized physician recommends pre-surgical testing/treatment, those tests and treatment expenses must be paid by the employer under Section 287.140.1 which requires that: “the employee shall receive and the employer shall provide such medical, surgical, chiropractic, and hospital treatment, including nursing, custodial, ambulance and medicines, as may be reasonably required after the injury or disability, to cure and relieve from the effects of the injury”. Once the authorized treating physician has recommended surgery to cure and relieve from the effects of this injury, any pre-surgical testing and treatment expenses are the responsibility of the employer.
Regarding TTD benefits owed prior to surgery, Sections 287.160 and 287.170 instruct employers to pay TTD when the employee is totally disabled from employment. TTD is also paid when an employee has returned to work with restrictions, but the employer cannot accommodate those restrictions. No TTD is owed for the first three days of disability. However, if the employee misses more than fourteen days, those first three days are then paid to the employee.
If the doctor recommending surgery and pre-surgery tests and treatment has not taken the employee off of work entirely, and has not imposed work restrictions that the employer cannot accommodate, then the employer has no obligation to pay TTD benefits while the employee undergoes pre-surgical testing and treatment.
Employers are not obligated to pay for TTD benefits for time employees miss from work undergoing pre-surgical testing and treatment unless the doctor ordering the test/treatment has placed restrictions on the employee taking him off work during that time. If TTD benefits are not already being paid to the employee prior to surgery, and the employer can continue to work up until surgery, the employee may be required to use his cumulated paid leave, personal leave, or medical or sick leave to attend the pre-surgery testing/treatment appointments.
Section 287.140.14 allows the employer to allow or require that the employee use accumulated leave benefits to attend the pre-surgery testing/treatment appointments during work time. Section 287.140.14 states: “the employer may allow or require an employee to use any of the employee’s accumulated paid leave, personal leave, or medical or sick leave to attend to medical treatment, physical rehabilitation, or medical evaluations during work time.”
If, however, the employee has no accumulated leave to be paid to attend pre-surgery appointments scheduled during work time, and he is not already receiving TTD benefits prior to the surgery, the employer is not obligated to pay TTD benefits for time missed from work regarding those pre-surgical tests and treatment unless restrictions are imposed that prevent the employee from returning to work.
Practice Tip: If a doctor recommends pre-surgical testing or treatment, we recommend the employer obtain a time frame during which this pre-surgical testing or treatment should be completed. Then the employer can request that the treating doctor advise the employee of the expectation to complete the treatment by that date. If the employee fails to complete the requested treatment of testing by that date, then it is possible the employer may be able to terminate TTD benefits for refusal or failure to complete medical treatment necessary to cure the underlying workers’ compensation injury.
Furthermore, if the employer believes the pre-surgical testing or treatment is unreasonable or not necessary, it should request the treating physician opine about the reasonableness of the treatment, or if the treatment for the work injury can proceed without completing the other pre-surgical treatment or testing. In very rare occasions can an employer attempt to challenge a treating physician’s designation of reasonable and necessary treatment since the employer directs care by selecting the treating physician. In these unusual cases, it could be helpful to retain us to assist in evaluating if this is possibility.