California: What Happens When the WCAB Invalidates an MTUS Regulation?

California’s 2012 WC reform package, SB863, mandated that medical treatment disputes would no longer by adjudicated by the WCAB. Instead, these disputes would be referred to Utilization Review (UR) and if requested, parties were permitted to appeal UR decisions to the Administrative Director (AD)’s Independent Medical Review (IMR) process. (See Lab. Code, § 4610.6.)

Labor Code section 4610.6(h) provides five grounds for appeal to the WCAB of IMR decisions. If the WCAB granted the appeal of the IMR decision, it would be returned to the AD and referred to another IMR physician for review. Of the five grounds for appeal, only the last one appears to have gained any traction. This last item allows for appeals of an IMR determination if “(t)he determination was the result of a plainly erroneous express or implied finding of fact…”

However, the WCAB in the Noteworthy Panel Decision (NPD), De Preciado v. Ross Stores, 2018 Cal. Work. Comp. P.D. LEXIS --, has explained under what additional circumstances the WCAB may overrule an IMR determination, that is not based on one of the five grounds for appeal found in Labor Code section 4610.6(h). That situation may occur when the IMR decision is based on an invalid Medical Treatment Utilization Schedule (MTUS) regulation. In De Preciado, the WCAB determined the following:

1. A medical treatment request for “personal home health care” (homemaker services and home health aide services, such as bathing and dressing the injured worker) is consistent with Labor Code section 4600(h) and California case law;
2. The WCAB may determine that an MTUS regulation which is contrary to state law to be void and invalid;
3. Since the MTUS statement that “personal home health care” does not constitute medical is contrary to California law, the WCAB found that particular MTUS regulation to be void and invalid; and
4. An IMR decision may be overruled by the WCAB when it relies on an invalid or void MTUS provision, such as the one relied on in this case.

In the NPD of DePreciado, Applicant obtained a prescription for “personal home health care” from her personal treating physician (PTP). Utilization Review (UR) & IMR reviewed the request and then denied it. The denial was based on the recommendation of the 2009 MTUS stating that “home health services,” such as “homemaker services… and personal care given by home health aides like bathing, dressing and using the bathroom” is not deemed to constitute medical treatment. However, since Labor Code section 4600(h) and California case law (see Smyers v. WCAB (1984) 157 Cal. App. 3d 36, 49 Cal. Comp. Cases 454) is contrary to that provision, the WCAB overruled the IMR denial.

Effective as of 1/1/2013, Labor Code section 4600(h) reads as follows:

“Home health care services shall be provided as medical treatment only if reasonably required to cure or relieve the injured employee from the effects of his or her injury and prescribed by a physician…” (Emphasis added.)

This NPD of De Preciado is squarely on point with the holding in the NPD of Stevens v. Outspoken Enterprises, Inc., 2017 Cal. Wrk. Comp. P.D. LEXIS 299. Most people are aware of the 1st District Court of Appeal’s (DCA) decision in the case of Stevens v. WCAB (2015) 241 Cal. App. 4th 1074, 80 Cal. Comp. Cases 1262. But few people are aware of what happened two years later after the 1st DCA remanded the case back “to the Board for a determination [as to] whether the director acted in excess of authority in deciding that personal care given by home health aides was not medically necessary for Stevens.”

In the 2017 Stevens NPD, the WCAB noted that the process used by the IMR physician to evaluate and deny “personal home health care” was based on an “invalid and void ab initio” 2009 MTUS provision. The WCAB panel deemed the regulation to be an “invalid regulation and is void ab initio,” since it is contrary to California law. The WCAB, in the 2017 Stevens NPD, then set forth what the IMR physician should have done in that situation. The WCAB, in the NPD of DePreciado, followed that same analysis and conclusion. In DePreciado the WCAB deemed the issue of home health care deferred and returned the case to the trial level to allow for an appropriate analysis to do be done by an IMR physician.

PRACTICE TIP: When attempting to appeal an adverse IMR decision, parties should carefully study the basis for the IMR decision. If there is reason to believe that the basis for the decision is contrary to California law, that may be a more effective basis for appeal than the generic assertion that “the determination was the result of a plainly erroneous express or implied finding of fact…” per both the 2017 Stevens NPD and the 2018 DePreciado decision.

(Note: The PDF for DePreciado can be found at the end of this article.)

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.

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