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An injured employee’s entitlement to home health care is oftentimes a hotly contested issue in the workers’ compensation arena. Home health care issues can vary in nature. Issues in these cases may involve the level of skill involved; the number of hours in a 24-hour period assistance is needed, not to mention the appropriate hourly rate at which the services should be paid. As an example of the potential dollars involved in these cases, if a spouse is providing services for 24 hours per day, at an LVN skill level, assuming an hourly rate of $25 per hour, and assuming a life expectancy of 35 years, the future value of these services amounts to over $7.6 million. After doing the math, it is easy to see why a great deal of litigation surrounds these particular issues!
Recently, a panel of commissioners addressed home health care. In Mota v. Allgreen Landscape [free pdf], 2012 Cal. Wrk. Comp. P.D. LEXIS 34 [lexis.com subscribers only], applicant was a landscaper who sustained an industrial injury to his head, neck, jaw, low back, right leg, right shoulder, left wrist, sense of smell, chest, psyche, gastrointestinal, pulmonary, eyes, hearing, gums, liver, nasal fracture, face, urinary, and impotency. He received a stipulated Award of 89% permanent disability and need for further medical treatment. There was no lien for services by applicant’s spouse at the time of the Award.
Subsequent to the Award, applicant filed a Declaration of Readiness to Proceed (DOR), identifying the issue as retroactive and prospective home health care. At trial, applicant’s wife testified without contradiction that "[s]he came to the United States when she learned of her husband's injury. She received legal permission to enter the United States and entered on August 16, 2001. Her husband had been sent to a rehabilitation hospital. She was with him all the time after she arrived, even sleeping at the hospital. She was taught how to bathe him, take him for a walk and what to do when he was going to leave the hospital. She fed him orally. She was taught how to give him his medications" (MOH/SOE, page 5). She also testified that "[s]he puts a catheter on him every night before he goes to bed. She was taught to administer the catheter at a doctor's office about 4 years ago. She has taken care of him since he got out of the hospital day and night" (MOH/SOE, page 5).
In her Findings and Order, the WCJ found that the lien for any services provided by the wife before September 1, 2005, was barred by Labor Code section 4903.5; that the Immigration Reform and Control Act of 1986 did not bar the wife from receiving the reasonable value of her services between September 1, 2005, and July 21, 2011; and that the reasonable rate to be paid to the wife was at the median LVN rate for Orange County as set forth by the trial testimony.
Defendant filed a petition for reconsideration. On reconsideration, defendant argued that it had no liability for home health care because it was not requested by a primary treating physician subject to the utilization review process; that requiring it to pay the wife would constitute a constructive retroactive hiring in violation of the Immigration Reform and Control Act of 1986; and that the majority of services provided by the wife were rendered at an unskilled healthcare worker level rather than an LVN level.
In reviewing defendant's petition, the commissioners noted that defendant did not claim that it was unaware that applicant’s wife was providing home health care services after applicant was released from the hospital, only that it did not get a formal request from a primary treating physician. Also, they noted that defendant did not cite any statutory or judicial authority for the proposition that it is not liable for any medical services for which it has not had the opportunity to engage in utilization review. Additionally, they observed that Labor Code section 4610, which requires that employers establish a utilization review process, was enacted in 2003 ch. 639 (SB 228), effective January 1, 2004. Accordingly, they held “defendant's alleged lack of opportunity for utilization review does not bar applicant's claim for reimbursement.”
With regard to the Immigration Reform and Control Act, the commissioners stated that the wife had never met the criteria for establishing that she was an employee of defendant. As such, the commissioners held this case was distinguishable from both Hoffman Plastic Compounds, Inc. v. National Labor Relations Board (2002) 535 U.S. 137, and Reyes v. Van Elk, Ltd. (2007) 148 Cal.App.4th 604, both of which involved claims by employees for back wages.
As a general matter, the commissioners found that the wife had provided medical services to her husband. The commissioners observed that if applicant had chosen to move to Mexico after his injury, for medical treatment and rehabilitation, and had the wife provided exactly the same services there, “defendant would be liable for those services, and there would be no issue as to her employment status or her right to reimbursement”. As such, the commissioners found that “the fact that these services were provided within the United States by a non-employee does not change the result”.
Interestingly, the commissioners also determined that the wife’s lien was a lien against applicant's compensation, not a claim on her own behalf. While payment may be made directly to the wife, it is applicant's compensation, and her claim is derivative from his right to compensation. Accordingly, the panel concluded, the wife does not become an employee of defendant as a result of her provision of services to the applicant.
With regard to defendant's contention that the majority of the services provided by the wife were rendered at an unskilled healthcare worker level rather than an LVN level, the commissioners found that based on the Agreed Medical Evaluator (AME) indicating applicant required an LVN level of care approximating 16-18 hours a day, the panel concluded that substantial evidence supported the need for LVN services 16 to 18 hours per day. Therefore, the commissioners found, a detailed description of services provided by the wife day by day was not required.
This case touches on several issues that commonly arise in these home health care cases. Though the commissioners concluded that the wife did not become an employee of defendant, this is an argument that is commonly made by applicants so as to motivate a defendant to informally resolve these issues. It is also interesting that the commissioners did not feel that further documentation as to the hours worked was necessary. Again, oftentimes, a day by day accounting in these cases can prove to be very difficult.
At the end of the day, applicant’s spouse was providing health care services. She was bathing him, walking him, providing him with medications, and putting in his catheter for him. Had applicant’s wife not provided these services, the defendant would have had to hire somebody to come in and do it. The panel’s decision in Mota appears to recognize a potential inequity that would be created if these services were not reimbursed.
© Copyright 2012 LexisNexis. All rights reserved. This article will appear in a forthcoming issue of the California WCAB Noteworthy Panel Decisions Reporter (LexisNexis).
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