Workers' Compensation

California: Does a Home Care Assessment Constitute “Treatment” Subject to Utilization Review?

Fine Lines and a Glimpse at the Future

In Rodriguez v. Simi Valley Unified School District, 2016 Cal. Wrk. Comp. P.D. LEXIS 671, applicant, a custodian, sustained injury at her employer. The injury was sufficiently serious that her treating physician deemed it necessary to ask that an independent evaluation occur to determine the nature and extent of home healthcare assistance required. An RFA was submitted to UR which was denied. This was appealed to IMR while simultaneously applicant filed a DOR for an expedited hearing. At Trial, the WCJ determined that the UR finding was never valid because there was no treatment issue requiring UR review. Rather, the question was analogous to an outside expert required to perform an evaluation necessary for the purpose of providing data for further determinations. The Finding by the Judge was then sent up for Reconsideration by defendants. At that time, the three commissioners understood and limited the issue to be whether “an evaluation for home healthcare is properly the subject of UR.” The Court, citing Navarro v. Alia Corporation, 2016 Cal Wrk. Comp. P. D. LEXIS 356, 8-9, in a fairly short decision signed by the panel of three commissioners, did not buy the Judge’s determination that there was a distinction between “evaluation” and “treatment”. They wrote, for example, that: “the fact that an x-ray or MRI can be considered evaluative or diagnostic, however, does not mean that the procedure is not subject to UR.” Nonetheless, in a mysterious footnote number one, easily missed, the Court added, “In some cases, a home health care evaluation may be a med-legal expense, rather than treatment. That is not the case here.”


The decision is deceptively simple in its finding but much more complicated in its ramifications. Consider the following:

1. There is definitely a difference between “benefits” and treatment. California has a long standing history of case law in determining appropriate benefits as an adjunct to treatment. Some examples include housekeeping (Smyers v. WCAB (1984) 157 Cal. App. 3d 36, 49 Cal. Comp. Cases 454), childcare (City of Simi Valley v. WCAB (Stephenson) (2008) 73 Cal. Comp. Cases 265 (writ den.)), home modifications (Bishop v. WCAB (2011) 76 Cal. Comp. Cases 1192 (writ den.)), transportation/van modifications (Washington v. WCAB (1996) 48 Cal. Comp. Cases 61 (Court of Appeal opinion not published in official reports), and, yes, spousal care (Los Angeles Times v. WCAB (Herbinger) (2005) 70 Cal. Comp. Cases 504 (writ den.)).

When it comes to awarding benefits, facts are often very important. For instance, the Court will generally not allow spousal assistance if that benefit were provided previously and unrelated to injury. Thus, on such issues, testimony before a Judge is required who can measure credibility and the facts. To expect UR reviewers having no access to testimony to determine whether babysitting is necessary would seem to be outside the scope of their expertise. Further, did the legislature really intend when it redefined treatment authorization by means of the UR protocol to actually change benefits awarded to the applicant by long-standing case law?

So we have the naughty question untangling the adjunct benefits allowed, heretofore loosely construed as treatment, and what facts and issues of credibility may require a judicial determination.

2. As the Court itself hints (in its footnote), there is a distinction between medical legal and treatment. To take the example of diagnostic studies, an orthopedist treating an applicant may see no need to order electrodiagnostic studies to confirm the presence of radiculopathy. It may make no difference in the treatment protocol (Lab. Code, § 4600 requiring treatment only “if reasonably required to cure or relieve” from the effects of injury) and so would not be appropriate treatment. On the other hand, according to Labor Code Section 4620, to qualify as medical legal, diagnostic studies are deemed appropriate if necessary for the purpose of “proving or disproving a contested claim.” Only treatment, and not necessarily medical legal, is subject to UR.

The AMA Guides 5th edition are mandatorily applied for rating purposes in the state of California pursuant to Labor Code Section 4660, which states under a DRE III (in the various spinal sections, i.e., pg. 384 Table 15-3) that “electrodiagnostic studies may be” used to verify radiculopathy. A DRE III rating is considerably more valuable than a DRE II rating. Sometimes the only thing that stands between the two is whether electrodiagnostic studies have been performed. So in a case where radiculopathy is reasonably suspected, and yet electrodiagnostic studies would not be valid for treatment purposes, it still may be necessary to prove or disprove contested issues.

Surely, no one would state that a UR reviewer is expected to be familiar with the AMA Guides in California law. As stated above, UR was not set up to rule on medical legal issues. The issue in short becomes medical legal and not treatment. So, as the Court here hints, there may be cases where expert testimony is indeed medical legal and would not fall under UR. An obvious example of that would be the longstanding practice allowing for reimbursement of a vocational specialist.

3. Finally, there is the terribly complicated quagmire as to MTUS (which is the first line of hierarchy in the UR System) and its relationship to home care. The MTUS is promulgated by the DWC administrative director under Labor Code sections 5307.27 and 4604.5, and can be found in sections 9792.20 et seq. of Title 8, California Code of Regulations. It is considered presumptively correct in UR Determinations.

The MTUS on page 51 talks about home health services and does not mention home care. The distinction is that home health services is specifically limited to skilled licensed care, and requires the recipient to be homebound. These references are borrowed from Medicare which has certain standards for reimbursement. (In defining homebound, see Medicare’s definition

On the other hand, home care, as it is provided in the world of workers’ compensation, allows for nonlicensed assistance. Family members being compensated for additional care of injured workers provided is well accepted. It may be limited to a number of hours per day. The recipient certainly need not be “homebound” in the traditional sense. (Although, arguably, the definition found in Medicare cited above is broader than its strictest connotation.)

So the question becomes how a UR reviewer, relying primarily on the MTUS, is supposed to analyze an allowable benefit of homecare that is primarily defined by case law and is not directly addressed by the MTUS at all? Assuming that such issues do need to go through UR, the parties would clearly need to present evidence linking Medicare’s definition with another type of benefit which is not included in Medicare. And, even assuming that such issues do need to go through UR, the parties would clearly need to present evidence linking Medicare’s definition with another type of benefit which is not included in Medicare. Also, the presumption of the MTUS can be rebutted when required, and the question is what other sort of guidelines would be more appropriate? In short, the matter becomes rather complicated.

Takeaway Points: Once again, the decision is deceptively simple. It is one panel decision among many future ones, I am sure, helping to untangle these difficult questions.

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