ADJ326655 — California WCAB decision

What the panel ordered

The Workers' Compensation Appeals Board affirmed the WCJ's March 4, 2019 Joint Amended Findings of Fact and Award, confirming the award of home health care to the applicant.

Defendant sought reconsideration of the Joint Amended Findings of Fact and Award issued by a workers' compensation administrative law judge (WCJ) on March 4, 2019, which awarded home health care to applicant. The WCJ's decision was affirmed after reconsideration.

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Medical treatment / UR / IMRApplicant prevailedback · knees · right shoulder · psyche · sleep · gastrointestinal system

The WCJ's award of home health care was supported by substantial medical evidence including prescriptions and reports from Dr. Sperling and Dr. Sohn, and the Appeals Board found the utilization review determinations denying care were untimely and invalid, thus affirming the award.

From the decision · page 1We granted reconsideration to further study the factual and legal issues in this case. This is our Opinion and Decision After Reconsideration. Defendant sought reconsideration of the Joint Amended Findings of Fact and Award issued by a workers' compensation administrative law judge (WCJ) on March 4, 2019. In ADJ326655, the WCJ found that applicant, while employed as a laborer during the period from August 2000 to August 2001, sustained industrial injury to his back, knees, right shoulder, pysche, sleep, and gastrointestinal system. In ADJ439309, the WCJ found applicant while employed as a laborer on February 22, 2001, sustained industrial injury to his back, knees, pysche, sleep, and gastrointestinal system. The consolidated cases resolved by Joint Order Approving Compromise and Release dated July 28, 2015, leaving open the issues of medical treatment and the home health care lien of Belinda the applicant, applicant's daughter. The parties proceeded to trial over the issue of applicant's entitlement to home health care, both retroactively and prospectively, as provided by the applicant. The WCJ awarded the disputed home health care.

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

The utilization review determinations denying home health care were not properly served on applicant's attorney, making them untimely and invalid.

Favours Applicant prevailed

This allowed the Appeals Board to determine the medical necessity and affirm the award of home health care.

From the decision · page 4On July 20, 2016, the first UR of the home health care issued. Defendant's UR recommended home health care for eight hours per week from July 15, 2016 to September 1, 2016. (Applicant's Exhibit 8.) However, this UR is internally inconsistent; defendant denied home health care services because the request was for assistance with ADLs and not for any specific health care. This UR does not specify that applicant's attorney's office was served although it was addressed to applicant at the address for his attorney's office. On November 27, 2017, another UR certified home health care for eight hours a week for 30 days. (Defendant's Exhibit B.) The record does not reflect that this UR was served on applicant's attorney. On October 9, 2017, defendant's UR issued, claiming to supersede the July 16, 2016 UR and denying home health care. (Defendant's Exhibit C.) Again, this UR was not served on applicant's attorney. In a significant panel decision, the Appeals Board held that a UR decision that is timely made, but is not timely communicated, is untimely. (Bodam v. San Bernardino County/Dept. of Social Services (2014) 79 Cal.Comp.Cases 1519.)3 As theses URs were not properly served, the WCJ obtained jurisdiction to adjudicate whether home health care services were reasonable and necessary medical treatment.

Substantial medical evidence from Dr. Sperling and Dr. Sohn supported the need for home health care services post-surgery and ongoing assistance with activities of daily living.

Favours Applicant prevailed

The medical evidence justified the WCJ's award of home health care, which the Board affirmed.

From the decision · page 3FACTS Applicant, while employed as a laborer during the period from August 2000 to August 2001, sustained an admitted cumulative industrial injury to his back, knees, right shoulder, pysche, sleep, and gastrointestinal system (ADJ326655). Applicant, in the same employment, on February 22, 2001, sustained an admitted specific injury to his back, knees, pysche, sleep, and gastrointestinal system (ADJ439309). As a result of these injuries, applicant underwent multiple arthroscopic knee surgeries, shoulder surgery, and bilateral knee replacements. The cases resolved by Joint Order Approving Compromise and Release dated July 28, 2015. The Joint Order deferred the issues of medical treatment and the home health care lien of Belinda the applicant. Hillel Sperling, M.D., issued a report dated February 6, 2002 noting applicant's need for post-surgery wound care and assistance with his activities of daily living (ADLs) four hours daily for two weeks, and then four hours a day, three times a week for six weeks.

What the panel did with the medical opinions

The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.

PTPRelied upon · orthopedics

Prescribed home health care services post-surgery including wound care and assistance with activities of daily living.

His February 6, 2002 report was found to qualify as a prescription under Labor Code section 4600(h).

From the decision · page 3FACTS Applicant, while employed as a laborer during the period from August 2000 to August 2001, sustained an admitted cumulative industrial injury to his back, knees, right shoulder, pysche, sleep, and gastrointestinal system (ADJ326655). Applicant, in the same employment, on February 22, 2001, sustained an admitted specific injury to his back, knees, pysche, sleep, and gastrointestinal system (ADJ439309). As a result of these injuries, applicant underwent multiple arthroscopic knee surgeries, shoulder surgery, and bilateral knee replacements. The cases resolved by Joint Order Approving Compromise and Release dated July 28, 2015. The Joint Order deferred the issues of medical treatment and the home health care lien of Belinda the applicant. Hillel Sperling, M.D., issued a report dated February 6, 2002 noting applicant's need for post-surgery wound care and assistance with his activities of daily living (ADLs) four hours daily for two weeks, and then four hours a day, three times a week for six weeks.

AMERelied upon · orthopedics

Opined that applicant should have home health care for four hours a day, twice a week, and later eight hours a week, supporting entitlement to home health care.

His January 22, 2008 AME report was found to qualify as a prescription under Labor Code section 4600(h) and was given substantial weight.

From the decision · page 3(Court Exhibit S.) The parties agreed to utilize the orthopedic AME, Roger Sohn, M.D., on the issue of home health care. (Applicant's Exhibit 4). Most of his reports do not address the home health care issue. However, in his report dated January 22, 2008, Dr. Sohn did address home health care and indicated that applicant's should have home health care for four hours a day, two days a week. (Court Exhibit Z.) Dr. Sohn also notes that applicant needs transportation to medical appointments. (Court Exhibit Y, deposition of Dr, Sohn, 11/18/08; Court Exhibit X, AME report dated 1/22/09.) His report dated December 6, 2011, states that applicant should have housekeeping services four hours a day, twice a week. (Court Exhibit U.) The parties requested that he address the home care

PTPRelied upon

Issued a prescription dated June 21, 2016, agreeing with the AME that applicant should have home health care for eight hours per week.

His prescription was part of the evidence supporting entitlement to home health care.

From the decision · page 4Steven Nagelberg, M.D., issued a PR-2 report and prescription dated June 21, 2016. (Defendant's Exhibit A.) He agreed with the AME that applicant should have home health care for eight hours per week. On March 29, 2018, the parties stipulated to correct an error in Dr. Nagelberg's prescription for home health care from eight hours daily to eight hours weekly. (Minutes of Hearing, (MOH/SOE, 3/29/18.)

The rules the panel named

Authorities as the decision cited them, with how this panel applied each one.

Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298

The en banc decision in Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298 regarding timeliness and validity of utilization review decisions.

The Board applied this en banc decision to find the UR decisions untimely and invalid, allowing the Board to determine medical necessity.

From the decision · page 5In Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II), the Appeals Board held that if a UR decision is untimely, the UR decision is invalid and not subject to independent medical review (IMR). The Dubon II decision further held that the Appeals Board has jurisdiction to determine whether a UR decision is timely. (Id.) If a UR decision is untimely, the determination of medical necessity for the treatment requested may be made by the Appeals Board. (Id. at p. 1300.) As stated by the Appeals Board in Dubon II, "timeliness cannot be fixed. Whether a UR decision is timely is a legal determination and must be decided by a WCJ. An untimely UR decision is the same as no UR." (Id. at p. 1311.) Here, the UR decisions dated October 9, 2017 and November, 27, 2017 are defective because there were not served on applicant's attorney.

Labor Code section 4600(h)

Labor Code section 4600(h) regarding home health care services as medical treatment.

The Board applied this statute to determine the requirements for home health care prescriptions and employer liability.

From the decision · page 5Labor Code section 4600(h) provides: 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 the employee's injury and prescribed by a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, and subject to Section 5307.1 or 5307.8. The employer is not liable for home health care services that are provided more than 14 days prior to the date of the employer's receipt of the physician's prescription. (§ 4600(h).)

Neri Hernandez v. Geneva Staffing, Inc. (2014) 79 Cal.Comp.Cases 682

The en banc decision in Neri Hernandez v. Geneva Staffing, Inc. (2014) 79 Cal.Comp.Cases 682 regarding home health care requests and SB 863 changes.

The Board applied this en banc decision to confirm the applicability of SB 863 to the case.

From the decision · page 5In our en banc decision in Neri Hernandez v. Geneva Staffing, Inc. dba Workforce Outsourcing, Inc. (2014) 79 Cal.Comp.Cases 682, 691 (Appeals Board en banc) (Neri Hernandez), we held that changes made by SB 863 apply to requests for home health care in all cases that were not final as of the effective date, January 1, 2013, regardless of the date of injury or dates of service. In this matter, the cases were not finalized until the July 25, 2015 Joint Compromise and Release.

ADJ326655 · June 10, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

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