En Banc Board Rescinds Award to Wife of Worker for Care Services

"....the board's decision also potentially has opened up 'a whole new can of worms,' and could lead to 'a lot more litigation' over every step of the process that the WCAB has laid out for obtaining payment for home health care."   Alan Gurvey

The California Workers' Compensation Appeals Board, in an en banc ruling Thursday, unanimously rescinded an award to a worker with a severe injury to his dominant hand for the home health care assistance he was receiving from his wife.

Even though Roque Neri-Hernandez got hurt before the California Legislature passed Senate Bill 863, the board ruled that the statutory changes that place limits on the payment for home heath care services applied in his case. All requests for home heath care in all cases that were not final as of Jan. 1, 2013, are subject to the amended version of the Labor Code, the board said. 

The case was Neri-Hernandez v. Geneva Staffing, No. ADJ7995806.

Brian Ishimoto of Adelson, Testan, Bruno & Jimenez served as defense counsel in the case. He said he thought the decision was "good for the entire workers' compensation community" because it clearly sets forth the requirements for determining the compensability of home health care services. 

Ishimoto remarked Thursday that he thought the Legislature's goal in enacting SB 863 was to clarify when home health care services needed to be covered by a comp carrier, and he opined "that mission has been accomplished" by the en banc board's ruling. 

Kim Dyess of Grancell, Stander, Reubens, Thomas & Kinsey said she thought Thursday's decision was "in line with the intention of SB 863." The bill provides that employers and insurers are not required to pay for home health care that is not prescribed by a physician.

Dyess predicted that the ability to apply the amended version of the Labor Code to pending cases would help defense attorneys, like her, move cases with home health care issues towards resolution. 

"The point of SB 863, and of this case, I think, is to weed out the fraudulent provision of home health care," and "prevent the unnecessary litigation that we've been experiencing when we have home health care being provided by a family member when it's completely unnecessary," Dyess said. "That's the entire point of requiring a prescription."  

Applicant attorney Alan Gurvey of Rowen, Gurvey & Win countered that he didn't think it was fair to apply SB 863 retroactively. 

While Gurvey conceded that not every claim for home health care by a worker's family member should necessarily be paid, he said "you can't just change the rules halfway through a game." When Neri-Hernandez was hurt, the standard for compensation was different, and Gurvey argued that injured workers shouldn't be penalized for failing to meet standards that hadn't existed when they filed their claims.  

What's more, if the facts of a case indicate that home health care should have been provided to a worker, Gurvey questioned why the comp system should be "so dead set against compensating people for the care they've given."

He said the system should not be allowed to "ignore the needs of an injured worker" and the "sacrifices that a family has made" to care for the worker through an "all-encompassing" rule that prohibits an award for services that were legitimately needed, just because a doctor's note was never obtained. 

The flip side to that, Ishimoto said, is that he didn't think it was fair for his clients to be hit with demands for payment for services that had allegedly been ongoing for years. 

Carriers were facing potential retroactive exposure for in-home services that were uncapped before SB 863, he said, and that's what the amendments addressed.  

The amendments actually wouldn't make a huge difference in the amount of the award for Neri-Hernandez, Ishimoto added, since he got a note from his doctor recommending home health care be provided by his wife within a few months of the date that his wife started providing care. 

Neri-Hernandez had worked as a machine operator for Geneva Staffing until July 2011, when he suffered a devastating crush injury to his right hand. He underwent five surgeries on his hand before the end of 2011, and his doctors have recommended that he undergo additional surgical procedures. 

Neri-Hernandez filed a claim for workers' compensation benefits based on his hand injury, and Dr. Leonard Gordon was selected by the parties to serve as the agreed medical evaluator to the case.

Gordon noted that Neri-Hernandez couldn't move his hand without experiencing severe pain, and had essentially lost all use of it.

Neri-Hernandez's wife, Adrianna Bayona, has been caring for him ever since his injury. 

Before Neri-Hernandez got hurt, Bayona had worked as a teacher's assistant at a daycare center for 15 years. She lost her job after Neri-Hernandez's accident due to excessive absenteeism, and she has not worked outside the home since then. 

She testified that she spends her days helping her husband with his pain medications and grooming. Bayona said she also drives her husband around, takes care of the house, the yard, the cars, food preparation and laundry. 

In November 2011, Neri-Hernandez's treating doctor wrote a letter to "whom it may concern" reporting that Bayona had been providing care for Neri-Hernandez, and that Neri-Hernandez was likely to continue needing assistance for the foreseeable future. 

Neri-Hernandez's attorney sent a copy of this letter to Geneva's insurance carrier, the Tower Point National Insurance Co., along with a written request that the carrier authorize Bayona to serve as Neri-Hernandez's in-home caregiver. The attorney indicated that he would be seeking an expedited hearing if the authorization was not given. 

Tower did not provide the requested authorization. An expedited hearing took place in March 2013 before Administrative Law Judge Alvin R. Webber. 

Webber found that Neri-Hernandez was entitled to payment for his "self-procured" in-home care – by Bayona. 

He issued Neri-Hernandez an award for 24-hour care from Aug. 3, 2011, until Nov. 4, 2012, and for six hours of care per day from Nov. 5 onward. The judge calculated the amount of the award by using Bayona's regular hourly rate of pay at the daycare center. 

Tower Point sought reconsideration, which the WCAB granted in August 2013. 

A panel comprised of Commissioner Alfonso Moresi, Chairwoman Ronnie Caplane and Deputy Commissioner Neil Sullivan ordered that the award be rescinded, but four days later, the panel granted reconsideration of its decision.

On reconsideration, Tower argued that an award for home health care services wasn't warranted under the amended statutory scheme governing home health care after the passage of SB 863.

Among the many changes wrought by the reform legislation, SB 863 enacted Labor Code Sections 4600(h), 4603.2(b)(1), and 5307.8, effective Jan. 1, 2013. Tower contended that these amended statutes applied to Neri-Hernandez's case, even though they took effect long after his date of injury. 

The carrier insisted that Neri-Hernandez was not entitled to an award of home heath care under the revised statutory scheme because he did not have a "prescription" for such services, as that term is used in Labor Code Section 4600(h).

SB 863 amended Section 4600(h) to provide that home health care services will be provided to an injured worker only if such services are reasonably required to cure or relieve the injured employee from the effects of his industrial injury, and are prescribed by a physician. 

The statute provides that a carrier will not be liable for the cost of home health care services provided more than 14 days prior to the date of its receipt of the physician's prescription.

A carrier's liability for home health care services is also subject to either Section 5307.1 or Section 5307.8. 

Section 5307.1 applies where an official medical fee schedule or Medicare schedule covers the type of home health care services sought. When the type of services sought is not covered by an official medical fee schedule or Medicare schedule, Section 5307.8 applies.

Section 5307.8 requires adoption of a fee schedule based on regulations adopted under the Welfare and Institutions Code. To date, no schedule has been adopted. 

In light of this, the WCAB said a worker instead must submit substantial evidence of the reasonably required number of hours and a reasonable rate of reimbursement for the services received. 

An injured worker also must show that the home health care services received had not been regularly performed in the same manner and to the same degree prior to the date of injury.

Additionally, Section 4603.2(b)(1) requires that the provider of the services provide an itemized list of the services provided and the charge for each service, along with a copy of the prescription for the service, when the provider requests payment for the services rendered. 

The en banc WCAB reasoned that Sections 4600(h), 4603.2(b)(1), and 5307.84 will apply to requests for home health care services in all cases that are not final, regardless of date of injury or dates of service. 

Since the Labor Code does not provide a definition of what a "prescription" for home care services must be, the board looked to the Business and Professions Code and arrived at the conclusion that it is either an oral or written order for treatment identifying the patient, with the date, the name and address of the prescriber, and the signature of the physician.

The WCAB reasoned that a prescription does not need to be labeled or written on a particular form, and it also does not require a detailed description of the services being prescribed. 

"Thus, we hold that the prescription required by Section 4600(h) is either an oral referral, recommendation or order for home health care services for an injured worker communicated directly by a physician to an employer and/or its agent; or, a signed and dated written referral, recommendation or order by a physician for home health care services for an injured worker," the board said. 

With respect to an oral prescription, the board held that the communication must be made directly to the employer or the employer's agent. A written prescription, however, can be conveyed by the injured worker, an injured worker's agent, a third person, or another provider. 

The board said it also would be appropriate for the written prescription to come in the form of a request for authorization by a physician, a medical report or a medical record.

If the communication is unclear about whether it is a "prescription" sufficient to trigger a carrier's liability under Section 4600, the board said the burden is on the carrier to investigate whether payment is due. 

Turning to the facts of Neri-Hernandez's case, the board reasoned that the November 2011 letter from Neri-Hernandez's treating doctor was a "prescription" for purposes of Section 4600, as amended by SB 863, since it identified the patient, the doctor, and stated that the patient needed in-home care from his spouse. 

At a minimum, the board said, Tower's liability for Neri-Hernandez's care began 14 days prior to the date it received this letter. But because the record was unclear if the carrier had possibly received notice of Neri-Hernandez's need for in-home care prior to this, the board said, the case had to be sent back to the WCJ for additional findings on this issue. 

On remand the WCJ also needs to make findings as to what services were actually needed by Neri-Hernandez, and what services Bayona actually performed before and after his injury. Any award for Bayona's services would then have to be based on the appropriate rate that would be paid to a similar caregiver, and not on her loss of earnings from her previous employment, the board added. 

Dyess said she would have liked the WCAB to have provided a more limited definition of what would constitute a valid "prescription," and she would have preferred to have it be limited to a recommendation in a written report from the primary treating physician. Allowing other written records to qualify, she said, "may create confusion," which would be particularly detrimental to carriers who wish to submit the request to utilization review, given the tight deadlines for carriers to do that.  

Gurvey said he thought the board's decision also potentially has opened up "a whole new can of worms," and could lead to "a lot more litigation" over every step of the process that the WCAB has laid out for obtaining payment for home health care. 

Basically, he said, the decision "leaves a lot of potential for a worker to show care was being provided and it was indicated by a doctor, but it will definitely shut out any people who were getting home care without a 'prescription.'" 

Gurvey said he would like to see the case taken up to the Court of Appeals, but Ishimoto said he didn't think that was going to happen.

After the WCAB panel had ruled, Ishimoto said Neri-Hernandez's attorney had indicated that Neri-Hernandez would not be seeking judicial review of the decision. Since the panel had reached the same conclusion as the en banc board, Ishimoto said he assumed Neri-Hernandez's stance had not changed, but he had not heard from his opposing counsel. 

Neri-Hernandez was represented by the law office of Racano & Racano. Neither of the firm's principal attorneys could be reached Thursday for comment. 

Published on June 13, 2014 by WorkCompCentral, authored by Sherri Okamoto