Precautionary Future Medical Award May Be Terminated After 5 Years

A Stipulation with Request For Award contains a section at the bottom of the first page that deals with future medical care. The parties are presented with three choices. The parties can stipulate that there either is need for medical care, may be need for medical care, or no need for medical care. If the middle alternative is chosen this may result in future problems for both parties.

The applicant had an industrial injury in 1981. The parties stipulated to 6-1/4 percent permanent disability and there might be need for future medical care. This stipulation resulted in a precautionary or provisional award of medical care.

The applicant subsequently filed new cases against a different employer after five years had elapsed on the 1981 award. The 1981 award was not reopened within the five years permitted for doing so. The applicant at the time of the subsequent injuries to different body parts wished to find out if medical treatment was still needed for the 1981 injury. The parties went to an Agreed Medical Examiner (AME) for that purpose. The AME determined the applicant needed no further treatment for the 1981 injury.

The defendant for the 1981 injury filed a petition to terminate medical care for that injury. The Workers’ Compensation Judge terminated medical care. The applicant filed a Petition For Reconsideration which was denied. The applicant then filed for a Writ of Review. This appellate court found that medical care could be terminated more than five years after the date of injury.

This court concluded that where the parties stipulate there may be need for medical care this is termed a precautionary or provisional award.

Labor Code section 5804 states an award cannot be rescinded, altered, or amended more than five years from the date of injury. However, they cite cases for the proposition that a petition to enforce a medical award is not a petition to modify, alter, or rescind. The Appellate Court looks to section 133 for authority to do any and all things necessary to enforce an award.

The appellate court differentiated between a lifetime award and a may be need for future medical care. The inference in a may be need is that there is an unequal inference that there may not be such a need, Therefore, the employer has the right to enforce the award by filing a petition to terminate after five years.  This is considered a request to enforce the award. A continuing award is not final. A precautionary award can be terminated if the employer can show the need for treatment has definitely ended.

Case: Barnes V. W.C.A.B.

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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