Published on June 26, 2017 by WorkCompCentral
The Frances Stevens case, which resulted in a ruling that restricted the California Workers' Compensation Appeals Board's ability to overturn independent medical review decisions, has re-emerged as a challenge to the WCAB's ability to overrule medical treatment guidelines.
Two years ago, former magazine editor Frances Stevens was unable to persuade the Court of Appeals that the statutory restrictions on the WCAB’s ability to review IMR decisions was unconstitutional. The court found the Labor Code provides “considerable” grounds for a decision to be overturned because of an error of law or fact.
Following remand, the WCAB issued a unanimous panel decision late last month that again invalidated the IMR decision denying Stevens’ request for in-home care services, but for a different reason. This time, the WCAB ruled that a provision in the 2009 version of the Medical Treatment Utilization Schedule was unlawful because it conflicted with previous case law.
The State Compensation Insurance Fund has asked the WCAB for reconsideration, contending that the panel went too far by striking down not just the IMR decision, but the MTUS, as well.
Last week, the California Workers’ Compensation Institute, the California Chamber of Commerce and the California Coalition on Workers’ Compensation asked the board to accept their joint amicus brief supporting the State Fund’s position.
The board’s May 19 decision had concluded the IMR decision in Stevens’ case was “adopted without authority” by the administrative director of the Division of Workers' Compensation.
This is one of the five bases recognized by Section 4610.6 for the WCAB to invalidate an IMR decision, and one that the Court of Appeals said would support a decision to overturn an IMR decision predicated on a misapplication of the MTUS.
The Labor Code deems all IMR decisions to be decisions of the administrative director, and it requires IMR reviewers to apply the standards set out in the MTUS in assessing whether a worker is requesting “medical treatment that is reasonably required to cure or relieve the injured employee of the effects of his or her injury.”
Stevens is dependent on a wheelchair because of a debilitating chronic pain condition that she developed after she broke her foot while at work in 1997. She now allegedly requires assistance with bathing, dressing, toileting, cooking and shopping.
The State Fund covered the cost of Stevens’ medical care over the years since her accident, but it contested her claim that she needed an in-home helper.
An IMR reviewer determined that the provision of a home health care aide was not medically necessary “treatment” for Stevens’ industrial injury. In reaching this conclusion, the IMR reviewer relied on the 2009 version of the MTUS.
That version provided that personal care services are not a form of “medical treatment” if no other medical care is needed.
The WCAB said this statement is contrary to long-standing California precedent that recognizes personal care services as a form of medical treatment reasonably required to cure or relieve a worker of the effects of an industrial injury. The WCAB found that provision of the 2009 MTUS was unlawful and that the administrative director exceeded her authority in adopting an IMR determination that ran contrary to the established case law on home health care services.
The board went on to say there was “compelling” evidence that Stevens needed in-home assistance, but it could not decide whether such services were medically necessary. That is a determination for a workers’ compensation judge, the board said.
The board then directed the workers’ compensation judge to consider the “extensive expert opinion regarding the medical necessity of home health care services” in lieu of the invalid provision of the 2009 MTUS in deciding the matter.
The State Fund requested reconsideration on June 12. Its supporters filed their request for leave to file an amicus brief last Thursday.
Defense attorney Louis Larres of Bradford & Barthel said he shared his firm's view that the WCAB had not had the authority to strike down the 2009 version of the MTUS the way it did.
He noted that the Court of Appeal “left open the issue of whether the treatment in dispute was permitted by the MTUS,” and he opined that a determination as to Stevens’ entitlement to home-care services “is a question to be resolved by reviewing and interpreting the MTUS.”
Larres contended “that direction to interpret does not necessarily include the ability to declare something unlawful.”
From his read of the Court of Appeals decision, Larres said he thought the court was indicating that “the WCAB should examine whether the determination is consistent with the MTUS or whether the determination misapplied the MTUS.”
If the board were to conclude that the IMR determination incorrectly denied home-care services by wrongly interpreting the MTUS, and it were to find there are no other reasons supporting the denial, Larres said, he thought the board “would have the power to conclude that the determination was adopted without authority.”
David Chun, a defense attorney with Stander Reubens Thomas Kinsey, said he also thought the board’s decision was off base.
The MTUS are “a resource” he said, and “just because a resource that is reference by statute is in conflict with case law, doesn’t mean it’s wrong,” especially since the MTUS is treated as presumptively correct.
Chun also said the panel decision is going to have limited applicability, as the MTUS were revised in 2013 and again in 2016. Additionally, he said, there aren’t many issues where the MTUS diverges from case law, so he doubted the WCAB panel decision will be “a wide-ranging type of weapon” for applicants’ attorneys in other matters.
Still, applicants’ attorney Charles Clark said the decision at least “gives us something to work with.”
Clark had co-authored one of the amicus briefs in the Stevens case when it was at the Court of Appeal. He said he thought the Court of Appeal established two methods “to get the board to make a ruling on medical treatment.”
According to the court, he said, there can be board review of an IMR decision containing a plainly erroneous fact or if there is something wrong with the application of the MTUS.
Clark said he believes the WCAB can now overturn an IMR decision if it relied on “the wrong section of the MTUS” or if the MTUS was “invalid as to the point in question.”
Julius Young, an applicants’ attorney with Boxer & Gerson in Oakland, said he thought the panel decision also “makes it clear home care is a form of treatment that may be necessary to cure or alleviate effects of an industrial injury.”
He noted that the 2016 version of the MTUS accepted home care as a medical treatment, which eliminates “a source of friction” under the prior version, and it will, hopefully, serve to reduce the disputes over the provision of such services going forward.
Fellow applicants’ attorney Alan Gurvey was a less optimistic, saying he feared the panel decision will turn out to be “a hollow victory” for Stevens.
“While it does acknowledge that the underpinnings of the previous decision are invalid,” Gurvey said, “it's not clear where it leaves poor Miss Stevens.”
The court notes there is evidence of an “ “overwhelming need for the home care, but apparently that's not something that they were willing to order based on the invalidity of the MTUS at that time,” leaving the injured worker “in limbo,” Gurvey said.