ADJ526691 · March 22, 2023

The petition was timely filed but delayed due to an internal processing error; the Board adjudicated the merits and denied the petition because the further recommendation by Dr. Kramer for LVN and CNA care was supported by a documented change in material facts and substantial medical evidence.

From the decision · page 1Defendant seeks reconsideration of the Opinion and Decision After Reconsideration we issued on November 18, 2022, wherein we rescinded the workers' compensation administrative law judge's (WCJ) findings that (1) Dr. Stuart Kramer's March 2, 2022 Request for Authorization (RFA) is by the same physician for the same treatment and is not supported by a documented change in material facts from the prior, timely utilization review decision dated October 22, 2021; (2) AD Rule 9792.9.1(h) bars the treatment requested in the March 2, 2022 RFA, specifically, home health care in the form of CNA care for sixteen hours per day, seven days per week for six months and LVN care for eight hours per day, seven days per week for six months; and substituted findings that (1) a documented change to the facts material to the October 22, 2021 UR decision render it no longer effective with regard to the further recommendation by Dr.

Dr. Kramer's March 2, 2022 RFA documented a change in material facts since the October 22, 2021 UR decision, including worsening balance and cognitive issues.

Favours Applicant prevailed

This supported the Board's finding that the further recommendation for LVN care was not barred by Rule 9792.9.1(h) and was medically necessary.

From the decision · page 3The March 2, 2022 RFA (with progress report) states:... Patient continues to be very forgetful. She remains very clumsy and prone to falling. This patient has already been found to be totally disabled due to her fibromyalgia, central nervous system, psychological, neck, shoulder and musculature injuries from work. The patient's husband is not able to provide around the clock assistance to his wife as it has had a devastating impact on his work and therefore livelihood. Without his assistance because of her serious cognitive impairment, dizziness, balance issues, risk of falling and daily need for medication management, the patient will be in imminent risk of harm. Therefore, her requested care should be processed in an expedited manner.... The patient's main complaints/issues are as follows: 1) Vertigo and overall Poor Balance. "I had a fall last week and hurt my Left wrist! I asked the Ortho MD who evaluated me last week but was told to go to get

The October 22, 2021 UR decision denied housekeeping but did not deny CNA care, so Rule 9792.9.1(h) did not bar the March 2, 2022 RFA for CNA care.

Favours Applicant prevailed

This allowed the Board to find the CNA care request was not barred and could be considered on the merits.

From the decision · page 6The October 21, 2021 UR decision states: The request for home health care is not appropriate for this claimant. Guidelines do not support domestic care services when there is no skilled home health services being provided. In this case[] housekeeping is being requested, which is not supported by guideline recommendations. Based on the clinical history and guideline recommendations, the prospective request for 168 home health care visits to include housekeeping (8 hours/day, 7 days/week, for 6 months) is non-certified. (Ex. 33, Utilization Review, October 22, 2021, p. 2 [Emphasis added].) Here, the October 21, 2021 UR decision denied "housekeeping" and, in doing so, did not modify, delay, or deny a request for CNA care. It follows that had the RFA actually requested CNA care, Rule 9792.9.1(h) still would not apply as a bar to such care.

Dr. Kramer explained the need for 24-hour care based on the applicant's husband's unavailability to provide assistance, supporting the amount of care requested.

Favours Applicant prevailed

This supported the Board's finding that the requested care was supported by substantial medical evidence.

From the decision · page 7However, the medical reporting reveals that Dr. Kramer's request for twenty-four hours of care, seven days per week, was based on his reasoning that applicant's husband would be unable "to provide [the] around the clock assistance" required for applicant's ambulation and medication management over the next six months. (Ex. 29, RFA Packet Consisting of Dr. Kramer 2/14/22 Progress Report, In-Home Health Assessment 2/17/22, Expedited Request 3/22, p. 3.) Therefore, we conclude that Dr. Kramer's reporting adequately explains his reasoning. (E.L Yeager v. Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases 1687] (stating that an expert medical opinion must be framed in terms of reasonable medical probability, be based on an accurate history and an examination, and must set forth reasoning to support the expert conclusions reached to constitute substantial medical evidence).) Accordingly, we are unable to discern merit to defendant's contention that Dr. Kramer's requests lack substantial medical evidence.

Dr. Kramer opined that a documented change in material facts supported the further recommendation for LVN and CNA care, including daily LVN care and 16 hours per day CNA care for six months, based on applicant's worsening balance, cognitive issues, and risk of harm without around-the-clock assistance.

Dr. Kramer's March 2, 2022 RFA and progress reports documented changes in applicant's clinical history and supported the need for increased home health care.

From the decision · page 3The March 2, 2022 RFA (with progress report) states:... Patient continues to be very forgetful. She remains very clumsy and prone to falling. This patient has already been found to be totally disabled due to her fibromyalgia, central nervous system, psychological, neck, shoulder and musculature injuries from work. The patient's husband is not able to provide around the clock assistance to his wife as it has had a devastating impact on his work and therefore livelihood. Without his assistance because of her serious cognitive impairment, dizziness, balance issues, risk of falling and daily need for medication management, the patient will be in imminent risk of harm. Therefore, her requested care should be processed in an expedited manner.... The patient's main complaints/issues are as follows: 1) Vertigo and overall Poor Balance. "I had a fall last week and hurt my Left wrist! I asked the Ortho MD who evaluated me last week but was told to go to get

Cal. Code Regs., tit. 8, Rule 9792.9.1(h)

Administrative Director Rule 9792.9.1(h)

The rule bars further recommendations for the same treatment by the same physician within 12 months unless supported by a documented change in material facts; the Board found such a change here to allow the March 2, 2022 RFA.

From the decision · page 5bar application of the March 2, 2022 RFA. Because the March 2, 2022 RFA contains a further recommendation by the same physician (Dr. Kramer) for the same treatment (LVN care), our task is to determine whether that further recommendation was supported by a documented change in the facts material to the basis of the utilization review decision. (Cal. Code Regs., tit. 8, Rule 9792.9.1(h) [Emphasis added].)

Labor Code section 5909

Labor Code section 5909

Governs the timing and tolling of petitions for reconsideration; the Board found the petition timely despite internal processing delay.

From the decision · page 2We received an Answer from applicant. We have reviewed the Petition for Reconsideration and the Answer. Based upon our review of the record, and for the reasons stated below and in our November 18, 2022 Opinion and Decision After Reconsideration, which we adopt and incorporate herein, we will deny the Petition. Labor Code section 5909 provides that a petition for reconsideration is deemed denied unless the Appeals Board acts on the petition within sixty days of filing. (Lab. Code, § 5909.) However, "it is a fundamental principle of due process that a party may not be deprived of a substantial right without notice...." (Shipley v. Workers' Comp. Appeals Bd. (1992) 7 Cal.App.4th 1104, 1108 [57 Cal.Comp.Cases 493]; see Rea v. Workers' Comp. Appeals Bd. (2005) 127 Cal.App.4th 625, 635 fn. 22 [70 Cal.Comp.Cases 312].) In Shipley, the Appeals Board denied applicant's petition for reconsideration because the Appeals Board had not acted on the petition within the statutory time limits. (Shipley, supra, 7 Cal.App.4th at p. 1106.) The Appeals Board had not acted on applicant's petition because, through no fault of the parties, it had misplaced the file.

Applicant's worsening balance and cognitive issues, and risk of harm without around-the-clock assistance

From the decision · page 3The March 2, 2022 RFA (with progress report) states:... Patient continues to be very forgetful. She remains very clumsy and prone to falling. This patient has already been found to be totally disabled due to her fibromyalgia, central nervous system, psychological, neck, shoulder and musculature injuries from work. The patient's husband is not able to provide around the clock assistance to his wife as it has had a devastating impact on his work and therefore livelihood. Without his assistance because of her serious cognitive impairment, dizziness, balance issues, risk of falling and daily need for medication management, the patient will be in imminent risk of harm. Therefore, her requested care should be processed in an expedited manner.... The patient's main complaints/issues are as follows: 1) Vertigo and overall Poor Balance. "I had a fall last week and hurt my Left wrist! I asked the Ortho MD who evaluated me last week but was told to go to get