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California: Home Health Assessment

October 25, 2023 (7 min read)

Home Health Assessment: When Can a Defendant Use Labor Code Section 4050 to Compel an Evaluation?

By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board

Labor Code section 4050 requires an industrially injured employee, upon the written request of their employer, to submit at reasonable intervals to a medical examination by a practicing physician provided and paid for by the employer. But does that statute permit a defendant to require an injured worker to submit to a home health assessment? That question was recently addressed by an Appeals Board panel. The case is Rodriguez v. Dynamic Edge Consulting (ADJ10884813, October 20, 2023), and the decision is especially noteworthy because the unanimous panel finds Labor Code section 4056 rather than section 4050 is the applicable provision to determine whether a home health assessment can be compelled.

The facts

Alicia Rodriguez (applicant) sustained a compensable injury to her brain. Dr. Roger Bertoldi, applicant’s treating physician, submitted a Request for Authorization for a home health assessment, and the request was authorized by defendant with the proviso that the assessment be conducted by a provider within defendant’s MPN. Applicant selected Sue Coleman, RN to perform the assessment and Ms. Coleman prepared the assessment dated May 23, 2023.

On June 16, 2023, defendant advised Dr. Bertoldi that it was objecting to Ms. Coleman’s report and requested that Dr. Bertoldi defer review of Ms. Coleman’s report until such time as defendant could obtain its own home health assessment from a provider within its MPN.

Defendant then sought to compel applicant to undergo a home health assessment by its selected provider. Applicant objected, contending that she had the right to control her own health care. The matter proceeded to trial, and the WCJ found that applicant self-procured a home health assessment outside of defendant’s MPN and ordered applicant to attend a home health assessment by a provider selected by defendant. The WCJ relied on two prior decisions which held that under Labor Code section 4050, an applicant can be compelled to submit to an evaluation by a vocational rehabilitation expert selected by defendant. Those decisions, Andrade v. Diamond Contract Servs., 2011 Cal. Wrk. Comp. P.D. LEXIS 99 and Holz v. Workers’ Comp. Appeals Bd. (2013) 78 Cal. Comp. Cases 484 (writ den.), reasoned that although section 4050 does not expressly authorize an evaluation by a vocational rehabilitation expert, it does not expressly prohibit one either and, coupled with principles of fundamental fairness and defendant’s right to conduct discovery, such an evaluation can be compelled.

The panel’s analysis

Interestingly, the panel’s decision does not discuss either Andrade or Holz. It begins its analysis by acknowledging that if there is a dispute as to the reasonableness or necessity of treatment recommended by the treating physician, the employer’s sole avenue for objection is to use the process set forth in Labor Code section 4610. Since the defendant authorized Dr. Bertoldi’s request for a home health assessment, the panel finds section 4050 inapplicable.

Next, the panel addresses the nature of Dr. Bertoldi’s request. It explains that home health care services, including housekeeping, is a form of medical treatment that a defendant is required to provide under Labor Code section 4600 when there is a demonstrated need for such services, citing Smyers v. Workers’ Comp. Appeals Bd. (1984) 157 Cal. App. 3d 36, 49 Cal. Comp. Cases 454 and Patterson v. The Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision). It then explains that a home health assessment is a form of medical treatment and observes that the parties in this case followed the statutory framework for obtaining authorization for the medical treatment recommended by Dr. Bertoldi. Dr. Bertoldi submitted a request for approval of his recommendation that a home health assessment be performed, and defendant authorized that request with a reminder that the assessment be performed by a provider within defendant’s MPN.

The panel then explains that the issue before it is not whether defendant is obligated to pay for the home health assessment that Ms. Coleman conducted at applicant’s request, but whether defendant can compel applicant to undergo a home health assessment by its selected provider. The decision looks to Labor Code section 4056 for the answer to that question. It quotes section 4056, which bars an employee from receiving compensation when their disability is caused, continued, or aggravated by an unreasonable refusal to submit to medical treatment if the risk of the treatment is (in the opinion of the Appeals Board based on expert medical advice) insignificant in view of the seriousness of the injury. The decision emphasizes that under section 4056, the employer has the burden of demonstrating that (1) it made an unequivocal tender of appropriate medical treatment to the employee and (2) the risk of the medical treatment is inconsiderable in view of the employee’s medical condition, citing Gallegos v. Workers’ Comp. Appeals Bd. (1969) 273 Cal. App. 2d 569, 34 Cal. Comp. Cases 322.

Applying section 4056 and Gallegos, supra, the panel concludes that defendant did not carry its burden by demonstrating a basis to compel applicant to undergo another home health assessment since it failed to show that the risk of that treatment is inconsiderable in view of applicant’s medical condition.

Finally, the panel reviews Labor Code section 4605 and acknowledges applicant’s right to obtain a report from a consulting physician at her own expense. It then observes that the QME or treating physician is required to address the report and indicate whether they agree with the findings and opinions contained in it. Thus, Dr. Bertoldi should review Ms. Coleman’s assessment and if Dr. Bertoldi agrees that home health treatment is reasonable and necessary, the parties should follow the procedures in section 4610 etc. to determine whether defendant should authorize and pay for such treatment.

Import of the Panel’s Analysis

What can we take away from the panel’s analysis? Foremost, that Labor Code section 4050 is limited in scope and does not supplant the procedures in sections 4060-4062 to resolve disputes over compensability, diagnosis, and the existence or extent of permanent disability. Nor does it replace the utilization review process in section 4610 for the resolution of disputes over the treating physician’s recommendations for reasonable and necessary treatment. Moreover, if the dispute centers on an alleged unreasonable refusal to submit to medical treatment, an injured worker’s right to compensation can be barred if defendant establishes that it made an unequivocal tender of appropriate medical treatment to the applicant and that the risk of the medical treatment tendered is inconsiderable in view of the injured worker’s medical condition. (See, Lab. Code, § 4056).

While the panel does not expressly address either Andrade, supra, or Holz, supra, what appears to be implicit in its discussion is a rejection of both decisions. Although not specifically applicable to the underlying dispute in this matter, it is interesting to note that an appellate court expressed its disfavor of Holz, supra. In Haniff v. Superior Court (2017) 9 Cal. App. 5th 191, 214 Cal. Rptr. 3d 844, the plaintiff was injured in a vehicular accident and filed a personal injury action against defendants seeking compensatory damages for wage loss and loss of earning capacity. Defendants served plaintiff with notice of a vocational rehabilitation examination to be conducted by a vocational rehabilitation counselor. Plaintiff objected to the examination on the basis that the Code of Civil Procedure did not authorize such an evaluation. Defendants sought an order compelling the examination, arguing that fundamental fairness and principles of broad discovery favored such an examination. The trial court granted the request and applicant filed a petition for writ of mandate requesting that the order be vacated. The appellate court held that review was appropriate to resolve the underlying question whether the trial court can compel a plaintiff to undergo a defense vocational rehabilitation evaluation even though that is not one of methods of discovery expressly authorized in the Civil Discovery Act. In their opposition, defendants argued that Holz, supra, supported the trial court’s order. The court found that argument unpersuasive and concluded its analysis by stating, “ [t]he contention that a defense vocational rehabilitation examination should be an available discovery method as a matter of fundamental fairness and trial preparation in a personal injury case where, as here, the plaintiff seeks compensatory damages for wage loss and loss of earning capacity, is better addressed to the Legislature.” (Haniff, supra, 9 Cal. App. 5th at p. 209).

Indeed, as the panel’s decision makes clear in this matter, the Legislature has spoken, and its directive is clear—Labor Code section 4050 does not permit an employer to seek an order compelling its industrially injured employee to submit to a home health assessment.

Reminder: Board panel decisions are not binding precedent.

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