California: Defendant’s Affirmative Obligation to Provide Medical Treatment

Defendant ordered to comply with earlier award of medical treatment in the form of assisted living services

In White v. Department of Social Services, 2015 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel affirmed the WCJ’s order instructing the defendant to comply with an earlier award of medical treatment in the form of assisted living services by making $9,525.28 payment “forthwith” to Atria El Camino Gardens so as to prevent the applicant’s eviction.

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The WCAB rejected the defendant’s assertion that the applicant could not properly pursue an Expedited Hearing to dispute the fee issue between the defendant and Atria as such issue did not involve the applicant’s entitlement to medical treatment. The WCAB concluded that the provision of assisted living services in this case is a unique form of medical treatment requiring the ongoing provision of services and a willing provider. In that way, it is similar to the nurse case manager services discussed in Patterson v. Oaks Farm (2014) 79 Cal. Comp. Cases 910 [79 CCC 910] (Appeals Board significant panel decision).

According to the WCAB, the defendant is obligated under the earlier 2/10/2012 utilization review determination and 6/18/2014 award to provide the applicant with medical treatment in the form of “assisted living at Atria.” While the defendant may have concerns about the amount Atria is currently charging, it must pursue its concern through means that do not jeopardize the continued provision of assisted living to the applicant, including finding a less costly way to provide the same medical treatment.

The WCAB enunciated that the defendant’s obligation to provide reasonable medical treatment pursuant to Labor Code § 4600 [LC 4600] and the 6/18/2014 prior award is paramount and allowing the applicant to be served with notice of eviction by Atria based on the defendant’s non-payment of fees is contrary to that obligation.

Commentary:

There has been significant legislation over the last 10 years in an effort to make the medical treatment benefit in workers’ compensation more cost effective and efficient. Governor Gray Davis first introduced the concept of Utilization Review (UR) to the California workers’ compensation system in 2003. More recently, in 2013, an appeal process to the UR determination was adopted, Independent Medical Review (IMR). On top of these review procedures, over the recent years we have also seen the implementation of the Medical Provider Network (MPN) and all of the procedures relating to that process.

The medical treatment benefit has unquestionably become highly procedural. One individual has described the medical treatment process in workers’ compensation as “medical treatment by litigation”. Though these procedures may have been intended to insure that physicians are providing only that treatment that is consistent with the various treatment guidelines, it seems that all we discuss anymore are the procedures. We don’t seem to concentrate on what treatment is actually being recommended and whether that treatment helps the injured employee.

However, this case, as well as Patterson v. The Oaks Farm, emphasizes that the employer/insurance carrier’s (hereafter, “defendant”) obligation to provide medical care is “paramount”. The obligation to provide this care requires more than a passive willingness to respond to a request. The defendant cannot sit back and ignore the request for authorization if it is not “just right” or that this or that procedure has not been perfectly complied with. The defendant has an affirmative duty to make sure the employee is getting the appropriate relief.

This is not to say that a defendant cannot take advantage of the procedural options that the recent legislation has afforded them. However, where an employee has been getting a certain level of care, whether or not that care is the subject of an award by the WCAB, the defendant cannot just unilaterally place the treatment through UR in hopes of having UR deny the treatment. Where an employee is living in an assisted care facility, as in White, whether or not the facility is charging excessive rates, the defendant cannot pay at a lower rate than what is being billed regardless of the consequences to the employee.

Many believe that the medical treatment benefit is the “cornerstone” of the entire workers’ compensation system. Cases like White and Patterson reflect the fundamental principle behind this benefit—namely, that it is not the WCAB that the legislature has entrusted to appropriately administer this benefit, rather, it is the defendant. It is imperative that the defendant exercise this entrustment actively, responsibly and with compassion.

Read the White noteworthy panel decision.

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