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Workers' Compensation

California: Home Health Care Service – Now & Then

Now that SB 863 is in effect, massive changes have taken place with regard to the authorization of home health care services. Therefore, it is important to understand the history behind the concept of home health care services as medical treatment (MT) pursuant to Labor Code Section 4600. The recent panel decision of Williams v. Claire’s Stores Inc., Travelers Ins Co., 2012 Cal. Wrk. Comp. P.D. LEXIS 497, discusses the basic standard for reimbursement of home health care services. It also provides valuable lessons that will remain relevant even after the SB 863 January 1, 2013 effective date.

Antonetta Williams suffered a severe injury at work and required daily assistance from her husband. The value of these home health care services was awarded to her husband after a trial on the issue. The defense appealed on several grounds. The WCAB rescinded the Judge’s award and returned the matter to the trial level for development of the record and to determine whether there was compliance with the Labor Code and the accompanying regulations.

In order to obtain reimbursement for home health care services, the primary treating physician (PTP) must request authorization for such services. The request is then put through Utilization Review (UR) for a determination as to whether those services are reasonable and necessary for the injured worker pursuant to Labor Code Section 4600.

The case of State Farm v. WCAB (Pearson) (2011) 192 Cal. App. 4th 51, 120 Cal. Rptr. 3d 395, 2011 Cal. App. LEXIS 86, 76 Cal. Comp. Cases 69, set forth the pre-SB 863 standard as follows:

Care provided by a family member to monitor and manage the industrially injured worker’s health care needs may qualify in some cases as medical care per LC Section 4600 (Hodgman v. Workers' Comp. Appeals Bd. (2007) 155 Cal.App.4th 44, 54 [65 Cal. Rptr. 3d 687] [mother of injured worker, who was also his conservator, could be reimbursed for monitoring and managing her son's health care needs].) In Henson v. Workmen's Comp. Appeals Bd. (1972) 27 Cal.App.3d 452 [103 Cal. Rptr. 785], the worker’s treating physician knew that practical nursing services were required and that the worker’s wife was providing them. Henson found that the wife could be compensated for those services. (Id. at pp. 461–462.) Smyers v. Workers' Comp. Appeals Bd. (1984) 157 Cal.App.3d 36 [203 Cal. Rptr. 521] held that when a physician recommended or prescribed, for medical reasons, that housekeeping services be performed for the injured worker, those services could be reimbursed under section 4600 as medical treatment reasonably required to cure or relieve the effects of the injury. (157 Cal.App.3d at pp. 41–43.)”

Applying this law to the facts in Williams, supra, the WCAB examined the specific requirements for authorization as set forth in the case law, the Labor Code and the attendant regulations and found some gaps in the evidence. (See Lab. Code, § 4061.5 and 8 CCR § 9785.)

1. There Must Be a Valid Request for Medical Treatment (MT)

As part of Ms. Williams’ rehabilitation program, one of her consulting physicians, Dr. Hassid, recommended that she participate in a functional restoration program offered by the Institute of Restorative Health in Davis, California. Dr. Hassid stated the following, as part of his medical report of March 16, 2011:

“Patient is disabled and will need a nurse aid [sic] to be with her 24 hours per day while she participates in our functional restoration program here in Davis.”

The WCAB interpreted this statement as a goal for the doctor’s functional restoration program, and NOT as a request for medical treatment (MT) in the form of home health care services.

2. The MT Request Must Be Served on Defense

In addition, the WCAB explained that several of the basic requirements for a MT request in the Williams case were absent. For instance, the WCAB noted that “there is no evidence it [the MT request] was ever served on defendant.”

PRACTICE TIP: It is important for practitioners to educate physicians as to the pertinent regulations regarding requests for medical treatment. Physicians should get in the habit of attaching proofs of service to their requests for medical treatment to establish that service was made on defendants. The proof of service will also be effective in proving the date of said service, which becomes relevant in determining whether or not Utilization Review is timely. (A FAXed request with a date stamp may also be effective for this purpose. The physician’s staff should always remember to serve all parties and their attorneys with these documents.)

3. The Request Must Be Labeled as a Request for MT

The WCAB also noticed that the MT request in the Williams case was not marked at the top to indicate “that it includes a request for authorization of medical treatment.”

Claims administrators are extremely busy. They deal with mountains of forms and correspondence every day. Because of the importance of providing injured workers with prompt treatment, MT requests must be given priority. In order to provide the administrator with a “heads up” that a particular piece of correspondence is an MT request and therefore requires immediate attention, 8 CCR § 9792.6(o) was created to provide a special designation as follows:

“If a narrative [request] format is used, the document shall be clearly marked at the top that it is a request for authorization. This applies to all MT requests.”

4. The Request Must Constitute Substantial Evidence

The cases of Escobedo v. Marshalls (2007) 72 Cal. Comp. Cases 336 and E.L. Yeager Constr’n v. WCAB (Gatten) (2006), 71 Cal. Comp. Cases 1687 (4th DCA) dealt with what constitutes substantial evidence regarding the issues of permanent disability and apportionment. However, the principles set forth in these cases as to what constitutes “substantial evidence” can be universally applied to all workers’ compensation issues, including requests for medical treatment in the form of home health care services.

Essentially, the doctor must provide an explanation for his or her conclusion, something that was not done by Dr. Hassid in the Williams case, as set forth by the WCAB as follows:

“Dr. Hassid provided no reasoning in his March 16, 2011 letter or the May 3, 2011 report to explain why applicant needs ongoing attendant care. The WCJ's effort to fill in that blank by reading all of Dr. Hassid's reports together and by supplying a rational by noting that applicant uses a wheel chair and has frequent seizures as discussed in the Report is not a substitute for the reasoned opinion of a physician.”

5. Request Must Be Made by the Primary Treating Physician

Finally, the WCAB raised the issue as to whether the MT request for home health care services was made by the primary treating physician (PTP). At trial, Antonetta Williams attempted to claim that she had two PTPs, Dr. Chan and Dr. Hassid. However, the WCAB reminded the parties that there may only be one PTP at a time. From the evidence presented, the WCAB determined that Dr. Chan was the primary PTP and that Dr. Hassid was the secondary or consulting doctor.

Because Dr. Hassid was a secondary treating physician, it was improper for the Judge to rely solely upon that physician's May 3, 2011 report to find that applicant is entitled to attendant care.

The WCAB set forth the reasoning for their conclusion as follows:

“(T)he treating physician primarily responsible for managing the care of the injured worker or the physician designated by that treating physician,” is the physician who “shall ... render opinions on all medical issues necessary to determine eligibility for compensation.” (Lab. Code, § 4061.5; see also Cal. Code Regs., tit. 8, § 9785(d).) If there is more than one physician providing treatment, “a single report shall be prepared by the physician primarily responsible for managing the injured worker’s care that incorporates the findings of the various treating physicians.” (Lab. Code, § 4061.5; see also Cal. Code Regs., tit. 8, § 9785(e)(4).)

Here, Dr. Chan was “the physician primarily responsible for managing the injured worker’s care” within the meaning of Labor Code section 4061.5, and there is no evidence that he ever incorporated the May 3, 2011 report of Dr. Hassid into his reporting.

Having determined numerous reasons why the award of reimbursement for home health care services in the Williams case was in error, the WCAB returned the matter to the trial level to develop the record on this issue.

Home Health Care Services Post-SB 863:

In order for a home health care provider to be reimbursed for services post SB 863, new Labor Code Section 4600(h) provides that the injured worker’s primary treating doctor must write a prescription for those home health care services.

In addition, the employer is not liable for the cost of any services that are provided to the injured worker “more than 14 days prior to the date of the employer’s receipt of the doctor’s prescription.” (Labor Code Section 4600(h).)

It should also be noted that under the new law, only those services that were not provided to the injured worker prior to the injury are eligible for reimbursement. For instance, if a husband prepared all of his wife’s meals prior to her industrial injury, he would not be allowed reimbursement for preparing her meals after her industrial injury.

CONCLUSION: SB 863 substantially changes the way home health care services will be awarded after January 1, 2013. In order to be reimbursed for home health care services, most, if not all of the “old law” principles discussed above, will most likely remain in effect. In addition, more stringent rules and requirements have been added by SB 863. New regulations and a new fee schedule (per Labor Code Section 5307.8) will be developed. These new regulations may tweak the old rules a bit and will certainly add some new mandates for both physicians and parties. Practitioners should carefully scrutinize the new regulations once they have issued, to ensure full compliance.

In addition, it is important to review and confirm the sufficiency of all evidence on home health care issues, as well as other issues, to be presented at the trial. This should be done well before the Mandatory Settlement Conference (MSC). Labor Code Section 5502(e)(3)* mandates closure of discovery at the MSC. There is no guarantee the parties will be allowed to develop the record once the matter goes to trial, as was allowed by the WCAB in the Williams case discussed herein.

*It should be noted that SB 863 has changed the numbering of the closure of discovery statute. It was previously Labor Code Section 5502(e)(3), but per the changes of SB 863, the section is now renumbered as Labor Code Section 5502(d)(3) after January 1, 2013.

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