One Date of Injury to Different Body Parts, Different MMI Dates:
Which MMI Date Controls?

Summary Written by Larry Fields

Applicant suffers a specific industrial injury that involves different body parts., e.g. back and knees, as a result of a slip and fall injury. The treating physician declares the back to be at MMI with a finding of permanent disability, but it is not until many weeks or months later that the knees reach MMI status. The carrier has been paying temporary disability benefits but decides that the same should be terminated when the back reached MMI status. Is this proper?

Labor Code §4061(a) indicates that together with the last payment of temporary disability the employer/carrier is to provide the appropriate permanent disability advice notice. It is assumed the employer/carrier satisfied this requirement and also sent out the appropriate notice regarding termination of temporary disability benefits.

But, what do we do about the alleged remaining period of potential temporary disability that relates to the knees. Does the first MMI date control?

This question was discussed in the recent WCAB panel decision of Foreman v. Target Corporation 2017 Cal. Wrk. Comp. P.D. Lexis 111. In this case, on July 11, 2006 applicant sustained a specific industrial injury to her lumbar spine and also alleged psyche and sleep disorder. Note that this date of injury pre-dated SB 863 enactment of Labor Code §4660.1(c)(1) precluding added impairment for psyche and sleep disorder if the same are related to a physical injury. Note also, however, there is nothing in that section that indicates any period of temporary disability related to psyche and sleep disorder caused by a physical injury is precluded.

Applicant's period of temporary disability did not begin until October 26, 2006. Ms. Foreman was being treated by an orthopedist for her lumbar spine who found her to be permanent and stationary/MMI on August 21, 2007. But, her treating psychiatrist indicated that she was not permanent and stationary/MMI until August 6, 2008. In fact, a psychiatric panel QME agreed with the treating psychiatrist as to her periods of temporary disability. The employer here argued that all liability for temporary terminated when her lumbar spine reached permanent and stationary/MMI status on August 21, 2007 and applicant contended that it should continue to August 6, 2008 when it reached that state due to her psychiatric condition.

The WCAB concluded that applicant was correct. It reasoned that there can only be one permanent and stationary/MMI date for an injury even if some body parts stabilize before others. As such, it is the permanent and stationary/MMI date on which the last body part reaches that stage. Here, payments for temporary disability should have continued through the date she reached permanent and stationary/MMI status. There is no mandate to send out the Labor Code §4061 permanent disability notice when applicant had reached permanent and stationary/MMI status regarding her lumbar spine.

Let us assume that instead of one specific injury, we have a specific injury and a continuous trauma injury, both to the same body parts. The period of temporary disability obviously would have run concurrently for both injuries, so applicant would not be able to collect double the money. And, once the last body part reaches permanent and stationary/MMI status, temporary disability for both injuries terminates.

We are all familiar with Labor Code §4656(c)(2) which caps temporary disability payments for injuries on/after January 1, 2008 to 104 weeks within a period of five years from the date of injury. What if in Ms. Foreman?s case her injury was in 2008 and not 2006? What if her psychiatric injury extended beyond the 104 week cap? It makes, no difference as there is no liability for temporary disability beyond the 104 weeks.

 

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