WCDefenseCA

In a continuing effort to make your life easier, an applicant’s attorney is claiming that a treating physician’s recommendation of medical treatment, in this case in-home care, dates back to the date of injury, five years ago!

What are you to do?

Well, in a turn that has left your somewhat-less-now-than-before cynical blogger a bit surprised, a Workers’ Compensation Judge and the Workers’ Compensation Appeals Board have sided with justice, fairness, and (the third of this wonderful trio) the employer!

In the case of Gloria Arana v. Hawthorne School District, a teacher’s aide sustained an injury in the year 2000 which, after a surgery in 2002, rendered her 100 percent permanently disabled.

The treating physician, and it appears there were no qualified or agreed medical evaluators used in this case, recommended in-home support eight hours per week and out-of-home support, such as grocery shopping, four hours per week.  This was a 2007 report, and the treatment recommendation was for 2002 and ongoing.

Defendant was faced with a demand for reimbursement of roughly 3000 hours of home care, and the continuing award of treatment for the “foreseeable future.”

The defense did not dispute the obligation to provide medical treatment in the future, but naturally objected to liability for treatment “prior to the date of a medical report establishing [the medical treatment’s] need.”

Any other result would have been ridiculous – the employer would have had no opportunity to contest the necessity of the medical treatment, negotiate a cheaper price from one of its providers, or rely on any of the other defenses usually available in such situations.  Unfortunately, history has shown that a preposterous result is not one to make the workers’ compensation system flinch.

Let a full-fledge WCDefenseCA salute issue to the WCJ and the WCAB for their wise and proper decision in this case.

It looks like the mileage rate for treatment,  medical-legal evaluations, etc., will remain the same as of January 1, 2011, according to this release made by the Internal Revenue Service.  As previously discussed, the compensation for mileage is tied to the IRS’s rating, and applies to California Workers’ Compensation.

So remember, for every mile driven, you owe that applicant 55 cents!

But, also remember, that the mileage reimbursement is part of the Labor Code section 4600 duty imposed upon the employer to provide all treatment “reasonably required” to cure or relieve from the effects of the industrial injury.  This means that you can get MapQuest directions, with total mileage, and compensate the employee from his house (you know, the one you had to ship the hot-tub to) to the deposition and back, and no more.  If the employee starts submitting ridiculous mileage reimbursement requests, you might have to rein him in.

Are services for injured workers such as housekeeping, pool cleaning, and gardening “medical treatment” under Labor Code section 4600 and are treating physicians’ recommendations for such services properly referred to Utilization Review under Labor Code section 4610?  The Court of Appeals recently denied applicant’s petition for a writ of review of a divided Workers’ Compensation Appeals Board decision on these very questions.

In the case of James Bishop v. Workers’ Compensation Appeals Board, applicant allegedly sustained injuries to his back, gastrointestinal system, and bilateral knees over a period of twenty-six years, ending in November of 1996 (a specific injury date of September 24, 1996, was also plead).  In 2006, a Workers’ Compensation Judge found applicant sustained an industrial injury with a permanent disability rating of 77%, after apportionment, and awarded applicant future medical treatment.

Defendant, in abiding by this award, paid for bilateral knee replacements, a hip replacement, and left shoulder surgery.  I mention this little fact just to point out that the defendant was not trying to avoid its duties under this award, nor was defendant a cheapskate.  Applicant received extensive treatment and considerable expense to defendant.  So what’s the problem?  Applicant made demands for housekeeping (8 hours a week), pool cleaning (once a week), and gardening services (once a week), based on the recommendations of the treating physician and the Agreed Medical Evaluator, as well as other “treatment” such as a weight loss program.

The WCJ awarded these services and ordered penalties be paid for unreasonable delay of medical treatment.  Defendant filed a petition for reconsideration, arguing that such services were not medical treatment reasonable and necessary to cure or relieve the applicant from the effects of his injury, and so were not subject to penalties for their delay.  Defendant further argued that because these services were not medical treatment, there was no obligation to refer such requests to utilization review.  (The WCJ found that defendant’s UR denial of the treating physician’s recommendations was timely as to the weight loss program, but being silent on the issues of the housekeeping, pool, and gardening services, was not timely.)

The WCAB found that neither the reports of the treating physician nor the AME constituted substantial evidence because of the unexplained conclusion that such services were medically necessary.  The WCAB also concluded that such services were not “medical treatment” and so were not subject to UR.

The WCAB also instructed the WCJ to clarify his analysis regarding the imposed penalties.

So what should we take away from this?  I would still recommend sending recommendations for in-house services to UR – this was a divided panel and therefore offers even less authority than the typical unanimous decision; it looks like defendant caught a lucky break in this case.  But, all in all, this is a great decision for an obviously responsible and responsive defendant – the matters of medical necessity were paid for; the trivialities of milking the defendant for free house services were properly and effectively resisted.

Often enough, these services are awarded to applicants, but usually the treating physician and/or the A/QME have to do a bit more leg work in their reports.  If you keep a close eye on these reports and requests for treatments, you might catch an M.D. or, more likely, a D.C. cutting corners, and thereby cutting you a path to denying “treatment.”

What’s your craziest story?  Free hot tubs? Manicures and pedicures?  If you’ve got a crazy story, let me know – gregory@grinberglawoffice.com

Are there limits to the Labor Code § 4600 duty to provide all medical treatment reasonably necessary to cure or relieve the worker from the effects of an industrial injury?  The cynical California Workers Compensation defense attorney might answer “no,” but in fact there are.

Labor Code § 4600 not only requires employers to provide treatment for industrial injuries, but for non industrial injuries as well (as in some cases, discussed in a previous post).  But in a recent workers’ compensation case, the Workers’ Compensation Judge and the Workers’ Compensation Appeals Board rejected a push for the limits of § 4600 and treatment of non-industrial injuries to be expanded even further.

In Navarro v. Vengroff Williams Associates, applicant sought to have her non-industrial obesity treated with lap-band surgery (at employer’s expense).  Applicant’s attorney tried valiantly and repeatedly to lead the Agreed Medical Evaluator to agree that lap band surgery was reasonably necessary to treat applicant’s industrial injury.

Fortunately, all applicant’s attorney came away with from the deposition was the AME’s concurrence that a healthy weight (a lower weight in applicant’s case) would benefit her health, as it would anyone else’s.

Utilization Review had non-certified the request for treatment and applicant went charging for the Board.  The Workers’ Compensation Judge and the Workers’ Compensation Appeals Board were not impressed.

My favorite quote from the WCAB panel’s opinion denying reconsideration?

“It is no surprise that Dr. Wertheimer agreed with applicant’s attorney that losing weight would be beneficial to applicant, who is pre-diabetic, and would decrease her symptoms and increase her activities.  Those improvements might occur for any individuals weighing over 300 pounds who lost weight, regardless of whether they had sustained any injury, industrial or otherwise.  However, that losing weight is beneficial is not equivalent to the medical necessity of Lap Band surgery.”

The panel also rejected the “highly improper” request that the Utilization Review report be considered untimely because a request for treatment “should have been presumed” to be made orally at the AME’s deposition.  We have covered the procedural requirements for a request for treatment in this post and this one.

Clearly, applicant’s attorney would benefit from becoming a regular reader of this blog (as would anyone… hint-hint).

If nothing else, this opinions shows that the reasonable and necessary standard of § 4600 still has some teeth peeking out of its otherwise harmless gums.  And that is something that even a workers’ compensation defense cynic can be happy about.

Under Labor Code § 4600, the insurer or self-insured employer must provide medical treatment “reasonably required to cure or relieve the injured worker from the effects of his or her injury” or else face the risk of having to reimburse the employee for his or her visits to Dr. McOver-Prescribe.

But at what point do the adjuster’s duties of approving the treatment or undertaking the expense of Utilization Review kick in?  For example, if a chiropractor calls the adjuster and says “Jim needs 100 more treatments of Placebo-tox” or “your employee Kathy would really benefit from my patented Medo-Widget,” must the adjuster act?

Or what if you open your mail and there is a note from a treating physician, simply saying “please authorize treatment X”?

Labor Code § 4603.2(a) states that the employee’s treating physician “shall submit a report to the employer within five working days of the initial examination and shall submit periodic reports at intervals that may be prescribed by rules and regulations adopted by the administrative director.”

So what regulations have been adopted by the administrative director?  Take a look at 8 CCR § 9792.6 (o).  This sets out the requirements for a request for treatment.  If the request is made orally, such as in a telephone call, it must be followed by a written request within seventy-two hours.

The written requests (both as originals and as the follow-up) must be on forms PR-1 or PR-2.  Otherwise, the request must be in a narrative, containing the same information as a PR-2, and “the document shall be clearly marked at the top that it is a request for authorization.”

In other words, if the proper procedure is not followed, no soup for you!

I’m sure you’ve seen/heard this already, but a friendly reminder never hurts.

As of July 1, 2011, the mileage reimbursement rate for medical treatment and medical-legal evaluations went up to 55 cents (from 51 cents).  Labor Code § 4600 (e)(2) requires the reimbursement of an injured worker’s reasonable expenses of transportation.  This is usually simple mileage for driving to and from appointments, but can also include flights and driving services.

The mileage rate is set by the Director of the Department of Personnel Administration, pursuant to Government Code § 19820.  Generally, this tracks the rate set by the Internal Revenue Service, which announced on June 23, 2011, the increase to 55 cents.

This is a relatively minor difference, but it cause a headache to deal with and give applicants more grounds to perceive themselves as wronged, especially when considering the potential for 25% penalties under Labor Code § 5814.

Should fertility treatments and vacation-home modifications be covered by California Workers’ Compensation?

In a recent case, Croushorn v. WCAB,  applicant George Croushorn made a claim for over $83,000 in improvements to his vacation home (installing a wheelchair ramp) and over $70,000 in fertility treatments as reimbursable under his 100 percent Permanent Disability and future medical award from 1998.

In 1995, Mr. Croushorn sustained an injury to his spine, legs, arms, head, neurological system, psyche, internal system and shoulders.  The injury was admitted and resulted in a stipulated award.

Defendant cited Labor Code § 4600 taking the position that fertility treatments and vacation-home wheelchair ramps were not “reasonably required to cure or relieve the injured worker from the effects of his or her injury.”  After all, defendant had already modified applicant’s primary residence twice.

The applicant, however, cited the need for a vacation home to treat his psyche symptoms and the need for fertility treatments because the injury had rendered him unable to have children without them.

The result?  The Workers’ Compensation Judge found for the applicant, concluding that the treatments and the wheelchair ramp were both reasonably necessary.  Defendant, not being content with an unnecessary extra $150,000 in benefits to pay out, petitioned for reconsideration.

Although the Workers’ Compensation Appeals Board had no doubt that several expenses could be undertaken to help applicant’s psychiatric condition, the question was whether modifying a vacation home was reasonable – and it was not.

The issue of the home modification was remanded to the WCJ to determine if defendant had, as applicant claims, promised to modify three homes.

On the issue of in vitro fertilization, the WCAB found that defendant must pay for the extraction of applicant’s sperm, but not the in vitro fertilization of his wife.

The Court of Appeals denied applicant’s Petition for a Writ of Review without prejudice to await the determination of the issues sent on remand.

In the past, I’ve seen items from vans with disabled ramps to hot tubs with extra jets to computer games being found reasonably required to cure or relieve the injured worker from the effects of his or her injury.  The reason I post on this case is because I am pleasantly surprised to find at least some sort of limit to what the defendant is burdened with paying for.

What’s the craziest treatment you’ve seen covered by  § 4600?  Let me know – gregory@grinberglawoffice.com