ADJ7841879 — California WCAB decision

ADJ7841879 · September 28, 2022

The WCAB affirmed the Findings Award and Supplemental Finding and Addition to Award except for clerical corrections to credit dates of service since June 2, 2018, deferred ruling on sanctions and attorney fees for lien claimant under sections 5813 and Rule 10786, found lien claimant entitled to penalties and interest under section 4603.2(b)(2), and returned the matter to the trial level for further proceedings.

Issues decided

Medical opinions weighed

Authorities named

District office

Anaheim

What the panel ordered

Petitions for reconsideration were filed by defendant and lien claimant challenging the Findings Award and Orders issued on June 21, 2022 and Supplemental Finding and Addition to Award Section A issued on June 28, 2022. The WCJ issued a Report and Recommendation on Petition for Reconsideration recommending denial of the petitions except for clerical corrections.

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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 prevailed

The WCJ and WCAB found that lien claimant Richard Dier's services as agreed case manager were reasonably necessary and that defendant failed to show good cause for removal, supported by medical opinions and lack of evidence of improper performance.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

The facts that decided it

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

Medical opinions from Drs. Zehler, Miller, Patterson, and Hoang support the necessity of lien claimant Richard Dier's services as case manager.

Favours Applicant prevailed

These opinions establish the medical necessity of the case manager services, favoring applicant's entitlement.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

Defendant failed to present evidence of improper performance or prejudice from lien claimant's ongoing service.

Favours Applicant prevailed

Lack of evidence to justify removal of lien claimant supports the WCJ and WCAB's decision to retain him.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

The hourly rates of $25 for home health care and $55 for injections are reasonable based on comparison to third party provider rates and proficiency of the applicant.

Favours Applicant prevailed

Supports the award of these rates for home health care services to applicant.

From the decision · page 14Here, as stated by the WCJ in the Report, the record shows that the services provided by the applicant are akin to those of an independent contractor--and that defendant has paid a third party provider $25.00 per hour rate for similar health care services that do not include provision of injections and would have to pay a third party provider $55.00 per hour for services including provision of injections. (Report, pp. 4-5.) Accordingly we are unable to discern merit to defendant's contention that the rates of reimbursement for the applicant's services are excessive or unreasonable.

Lien claimant's invoices were not paid within 45 days, triggering penalties and interest under Labor Code section 4603.2(b)(2).

Favours Applicant prevailed

Supports lien claimant's entitlement to penalties and interest for untimely payment.

From the decision · page 1710, 12-13.) Here, as explained above, the record shows that the parties agreed to lien claimant's billing rate, that defendant never objected to any of lien claimant's invoices by submitting an Explanation of Review, and that there is no evidence that any of lien claimant's invoices were paid within forty- five days of receipt. (Report, pp. 13-14.) It follows that section 4603.2(b)(2) penalty and interest attach by operation of law to lien claimant's invoices to the extent that they have not been timely paid. We therefore conclude that lien claimant is entitled to penalties and interest pursuant to section 4603.2(b)(2). Accordingly, we will amend the F&A to find that lien claimant is entitled to

The rules the panel named

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

Labor Code section 4600

Employer must provide medical treatment reasonably required to cure or relieve the injured worker from the effects of injury under Labor Code section 4600.

Applied to determine compensability of home health care and case manager services.

From the decision · page 13employer must provide "[m]edical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatuses, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve the injured worker from the effects of his or her injury." (§ 4600 (a).) It is well-settled that home health care is an appropriate benefit under section 4600, and that home health care services need not be provided by a nursing professional to be compensable. (Henson v. Workers' Comp. Appeals Bd. (1972) 27 Cal.App.3d 452 (awarding compensation to wife of injured worker who provided home healthcare to injured worker); Smyers v. Workers' Comp. Appeals Bd. (1984) 157 Cal. App. 3d 36, 42 (housekeeping services reimbursable where they are "necessary and reasonable in order to allow the injured worker to fully comply with the treatment prescribed by [the applicant's] physician").)

Labor Code section 4603.2(b)(2)

Penalties and interest attach by operation of law to unpaid medical invoices under Labor Code section 4603.2(b)(2).

Applied to find lien claimant entitled to penalties and interest for untimely payment of invoices.

From the decision · page 1710, 12-13.) Here, as explained above, the record shows that the parties agreed to lien claimant's billing rate, that defendant never objected to any of lien claimant's invoices by submitting an Explanation of Review, and that there is no evidence that any of lien claimant's invoices were paid within forty- five days of receipt. (Report, pp. 13-14.) It follows that section 4603.2(b)(2) penalty and interest attach by operation of law to lien claimant's invoices to the extent that they have not been timely paid. We therefore conclude that lien claimant is entitled to penalties and interest pursuant to section 4603.2(b)(2). Accordingly, we will amend the F&A to find that lien claimant is entitled to

What proof carried it

The evidence the panel weighed, by kind.

Testimony and credibilityfavours Applicant prevailed

Credible testimony of lien claimant Richard Dier and medical reports from Drs. Zehler, Miller, Patterson, and Hoang supporting necessity of case manager services.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

Medical recordsfavours Applicant prevailed

Defendant failed to show evidence of improper performance or prejudice from lien claimant's ongoing service.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

ADJ7841879 · September 28, 2022

What the panel ordered

What was disputed, and how it came out

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The facts that decided it

What the panel did with the medical opinions

The rules the panel named

What proof carried it

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