WCDefenseCA

Welcome back from the weekend, dear readers! Isn’t 2019 flying right by?  It feels like it’s been 2 months since new years’ but it’s actually only been two weeks.  The cold will never stop, the sun will never come back, and in the back of your humble blogger’s mind plays that old song on repeat: “hello darkness my old friend… why are you here it’s 4 p.m. …?”

Anywho, to reward you for your loyalty in readership and discerning taste in subscription (I know that not just anyone is allowed to contaminate your e-mail inbox), I am going to tell you a little workers’ compensation secret.  If a defendant is providing a certain type of medical treatment, it is not allowed to stop unless there’s a change in medical circumstances.  That’s right! Look through the Labor Code and you won’t find it; search through the regs but it isn’t there!  That’s because this secret is just a figment of some applicant attorneys’ imaginations.  It is a myth, a fantasy, not unlike Keyser Soze, which is why it’s such a well-kept secret, of course.  (To be fair, dear readers, there is one WCJ’s ruling and a no-comment WCAB approval that supports this conclusion, but this is non-binding and has no regulatory or statutory authority that your humble blogger can find; it would appear that the case discussed in this blog post directly conflicts with any guidance provided by the Miramontes result.)

With that in mind, I bring to your attention the relatively recent panel decision in the matter of Gonzalez v. First Presbyterian Church of Santa Barbara.  Therein, an applicant sustained an admitted injury and resolved her case via stipulated award with open future medical.  The case was reopened via petition but that’s not really related to the issue at hand.

Defendant was providing home health care for more than four years.  When applicant’s treating physician submitted yet another request for continued home health care, the request was forwarded to UR which issued a timely denial.  Applicant made a timely request for IMR but also challenged the validity of the UR denial at an expedited hearing.  Defendant raised the issue of jurisdiction based on the WCAB’s decision in Dubon II.

After the expedited hearing, the WCJ ruled that as UR was timely, the WCAB had no jurisdiction to review the decision – it had to go to IMR if it was to go anywhere at all.

The WCAB in reviewing the decision, ruled that a defendant can terminate home health care services if they are no longer necessary, and UR is one method of proving that they are no longer reasonably necessary to cure or relieve from the effects of the injury.

So what’s the lesson to learn here?  Well for defendants it is an old one: UR and IMR trend towards cost containment, and, of course “a trend is your friend.”

But, believe it or not, there is a lesson here for applicants as well.  There is a difference between medical treatment and a medical treatment award.  Just like we all learned in law school (or in preschool for that matter) a promise is different than performance on the promise.

The workers’ compensation landscape is increasingly becoming one where obtaining a medical treatment award is getting easier, but getting actual treatment – whether because no doctor is willing to starve his or her family by accepting workers’ comp fee schedule or because UR and IMR are very aggressive – is getting harder and harder.

So, perhaps there is some sense in applicant attorneys encouraging their clients to C&R their claims.  An aspirin in the hand is worth two on your PTP’s RFA.