California: Home Health Care in the Context of a Psychiatric Injury

California: Home Health Care in the Context of a Psychiatric Injury

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On September 30, 2013, a panel of three commissioners with the Workers’ Compensation Appeals Board (WCAB) denied a request to reconsider a Workers’ Compensation Administrative Law Judge’s (WCJ’s) decision denying reimbursement for home health care.

The facts in this case, 2013 Cal. Wrk. Comp. P.D. LEXIS --, are quite interesting. On June 5, 2009, applicant suffered a partial amputation to his fourth and fifth fingers. The injury to applicant’s fourth and fifth fingers as well as an injury to his psyche was resolved via Stipulated Award on February 28, 2013. These stipulations specifically provided applicant with 53% permanent disability along with a provision for further medical treatment.

A few weeks before the Stipulations were approved, on February 9, 2013, the evidence showed that applicant had been psychiatrically hospitalized. A February 7, 2013 report from his psychiatric treating physician noted a significant suicide risk, significant depression and a recommendation that applicant be psychiatrically hospitalized. The evidence showed the applicant had expressed the desire to jump off of a freeway bridge into oncoming traffic. The applicant was hospitalized from February 9, 2013 to February 19, 2013.

In a follow-up report dated February 20, 2013, applicant’s physician noted that applicant described his hospitalization as “beneficial” and that, according to him, the hospitalization improved his self-esteem, appetite and sleep. He described himself as having a more positive outlook and denied any current suicidal or homicidal thoughts. In this report, the physician set forth a detailed treatment plan. Most significant to the decision in dispute, the report indicated that the applicant must remain in a safe and controlled environment closely monitored for his well-being. The report specifically stated: “Therefore, 24/7 home cares [sic] assistance, and transportation to all medical appointments is recommended. [The injured worker] is taking potent medication, and should not drive himself as he maybe [sic] a danger to himself, or others. In addition, his medications should be provided by preferably an LVN, or Psychiatric Technician.”

The only other relevant medical evidence in connection with the home health care issue was from applicant’s orthopedic physician who, on May 6, 2013, essentially agreed with the psychiatric physician. The orthopedic physician stated that applicant required “24/7 home care assistance by a psyche technician or LVN which is necessary to cure and relieve [the injured worker] from the effects of his orthopedic injury.”

None of these reports were submitted through the Utilization Review (UR) process.

In considering the 24/7 home care request, the WCJ noted that Labor Code section 4600(b) [LC 4600] allows applicant reasonable and necessary treatment which has been defined as treatment that is based on the guidelines adopted by the administrative director pursuant to Labor Code section 5307.27 [LC 5307.27]. The WCJ also found that, citing Sandhagen v. WCAB 73 Cal. Comp. Cases 981 [73 CCC 981], even where the defendant fails to place a treatment recommendation through UR, applicant still has the burden of proving that the treatment is reasonable and necessary. In other words, an applicant must still prove that the disputed treatment either falls within the uniform guidelines (Labor Code section 4600(b)) or rebuts the applicable guidelines with a preponderance of scientific medical evidence (Labor Code section 4604.5 [LC 4604.5]).

In this particular case, the WCJ noted that none of the medical reports submitted referenced any of the applicable guidelines for 24/7 home health care for severe depression. He further found that there was no mention of any such modality of care in Chapter 15 of the ACOEM Guidelines regarding stress complaints. He proceeded to further comment that neither the Chronic Pain Guidelines nor the ODG Guidelines provide for home health care as a modality of psychiatric treatment.

The WCJ concluded that the proposed 24/7 nursing assistants would essentially function as unarmed guards designed to protect the patient from self-destructive impulses and overmedication. The WCJ could not see how any type of “institutional presence” in applicant’s home could prevent him from harming himself. He found that the more conventional modalities of psychiatric treatment seem far more likely to succeed and if they do not, then possibly applicant might require a re-hospitalization.

It’s interesting to note that the applicant’s main point on reconsideration was that in rejecting the treating physician’s recommendation of 24/7 home health care, the WCJ was effectively “playing doctor” by rejecting the un-rebutted recommendations of the physicians. The WCJ noted that Labor Code section 4600(b) specifically presumed that the WCJ would have to make an assessment of whether a specific treatment would fall under a specific treatment guideline or whether a specific guideline had been rebutted by other evidence.

It is precisely this allegation that WCJ’s across the State were “playing doctor” that led many to support Senate Bill 863’s concept of Independent Medical Review (IMR). The idea was to remove medical decisions from the WCJ’s and ensure that duly licensed medical experts were making those calls. However, the IMR process was not triggered in the instant case as the IMR process is triggered by a UR determination (Labor Code sections 4610.5 and 4610.6 [LC 4610.5, 4610.6]). As there was no UR determination in this case, the issue of whether the 24/7 care was reasonable and necessary was appropriately determined by the WCJ.

© Copyright 2013 LexisNexis .All rights reserved. This article will appear in a forthcoming issue of California WCAB Noteworthy Panel Decisions Reporter.

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