Opinion
OPINION AND DECISION AFTER RECONSIDERATION
KATHERINE A. ZALEW SKI, CHAIR.
We granted reconsideration to further study the factual and legal issues in this case. This is our Opinion and Decision After Reconsideration. Defendant sought reconsideration of the Joint Amended Findings of Fact and Award issued by a workers’ compensation administrative law judge (WCJ) on March 4, 2019. In ADJ326655, the WCJ found that applicant, while employed as a laborer during the period from August 2000 to August 2001, sustained industrial injury to his back, knees, right shoulder, pysche, sleep, and gastrointestinal system. In ADJ439309, the WCJ found applicant while employed as a laborer on February 22, 2001, sustained industrial injury to his back, knees, pysche, sleep, and gastrointestinal system. The consolidated cases resolved by Joint Order Approving Compromise and Release dated July 28, 2015, leaving open the issues of medical treatment and the home health care lien of Belinda Espino, applicant’s daughter. The parties proceeded to trial over the issue of applicant's entitlement to home health care, both retroactively and prospectively, as provided by Ms. Espino. The WCJ awarded the disputed home health care.
In its Petition for Reconsideration, defendant contended there was no request for authorization for home health care prior to June 21, 2016. Defendant also contended that the WCJ should have found the July 20, 2016 UR certifying home health care for eight hours a week was only for six weeks. Defendant contended that the WCJ erred in finding that Ms. Espino’s home health care logs complied with Labor Code section 4603.2(b)(1)(a), arguing that the home health care logs do not establish that the treatment rendered was reasonable and necessary pursuant to the June 21, 2016 reporting of applicant’s primary treating physician and the agreed medical examiner (AME). Defendant contended the WCJ erred in finding that Ms. Espino was qualified to perform wound care, as she has not actually worked as a certified nursing assistant.
All further statutory references are to the California Labor Code, unless indicated otherwise.
Applicant filed an Answer. Defendant has filed a Response to Applicant’s Answer to Petition for Reconsideration, without our permission and in violation of Workers’ Compensation Appeal Board (WCAB) Rule 10964. Although defendant should have complied with Rule 10964 and requested permission, we accept defendant's supplemental pleading and include it in our deliberations.
All further regulatory references are to the California Code of Regulations, unless otherwise noted.
We note that our review of the record is complicated by defendant’s failure to comply with WCAB Rule 10945(b), which provides, in relevant part: “[e]very petition for reconsideration … shall support its evidentiary statements by specific references to the record.” (Cal. Code Regs., tit. 8, former § 10842(b), now § 10945(b) (eff. Jan. 1, 2020), (emphasis added.) Rule 10945(b) specifies how references to the record must be made. Here, defendant has violated Rule 10945(b), has failed to support its arguments with specific citations, and has not cited to the record as required. Defendant cannot evade this responsibility and place the burden on the Appeals Board to discover where the evidence supporting its petition can be found.
We received a Joint Report and Recommendation on Petition for Reconsideration (Report) from the WCJ in response to defendant’s Petition for Reconsideration, which recommended that the petition be denied.
We have reviewed the record and have considered the allegations of the Petition for Reconsideration, applicant’s answer, the supplemental pleading and the contents of the WCJ's Report with respect thereto. Based on our review of the record, for the reasons discussed below, and for the reasons stated in the Report, we affirm the March 4, 2019 decision.
PROCEDURAL HISTORY
The July 28, 2015 Order Approving Compromise and Release resolved the indemnity issues, leaving open the home health care lien of Belinda Espino. On December 13, 2017, the matter proceeded to a lien trial. The WCJ vacated submission because the record appeared incomplete. On March 29, 2018, the matter was resubmitted, and on June 5, 2018, the WCJ issued Findings of Fact and Order. On June 27, 2018, applicant filed a timely Petition for Reconsideration. The WCJ again vacated submission to further develop the record. On January 19, the matter was resubmitted, with additional exhibits. On March 4, 2019, the WCJ issued the Amended Joint Findings of Fact and Order. Defendant sought reconsideration.
FACTS
Applicant, while employed as a laborer during the period from August 2000 to August 2001, sustained an admitted cumulative industrial injury to his back, knees, right shoulder, pysche, sleep, and gastrointestinal system (ADJ326655). Applicant, in the same employment, on February 22, 2001, sustained an admitted specific injury to his back, knees, pysche, sleep, and gastrointestinal system (ADJ439309). As a result of these injuries, applicant underwent multiple arthroscopic knee surgeries, shoulder surgery, and bilateral knee replacements.
The cases resolved by Joint Order Approving Compromise and Release dated July 28, 2015. The Joint Order deferred the issues of medical treatment and the home health care lien of Belinda Espino.
Hillel Sperling, M.D., issued a report dated February 6, 2002 noting applicant’s need for post-surgery wound care and assistance with his activities of daily living (ADLs) four hours daily for two weeks, and then four hours a day, three times a week for six weeks. (Court Exhibit S.)
The parties agreed to utilize the orthopedic AME, Roger Sohn, M.D., on the issue of home health care. (Applicant's Exhibit 4). Most of his reports do not address the home health care issue.
However, in his report dated January 22, 2008, Dr. Sohn did address home health care and indicated that applicant’s should have home health care for four hours a day, two days a week. (Court Exhibit Z.) Dr. Sohn also notes that applicant needs transportation to medical appointments. (Court Exhibit Y, deposition of Dr, Sohn, 11/18/08; Court Exhibit X, AME report dated 1/22/09.) His report dated December 6, 2011, states that applicant should have housekeeping services four hours a day, twice a week. (Court Exhibit U.) The parties requested that he address the home care issue in his report of January 16, 2013. (Joint Exhibit 5.) In this report, Dr. Sohn opined that eight hours a week of home health care was adequate.
Steven Nagelberg, M.D., issued a PR-2 report and prescription dated June 21, 2016. (Defendant's Exhibit A.) He agreed with the AME that applicant should have home health care for eight hours per week. On March 29, 2018, the parties stipulated to correct an error in Dr. Nagelberg’s prescription for home health care from eight hours daily to eight hours weekly. (Minutes of Hearing, (MOH/SOE, 3/29/18.)
On July 20, 2016, the first UR of the home health care issued. Defendant’s UR recommended home health care for eight hours per week from July 15, 2016 to September 1, 2016. (Applicant's Exhibit 8.) However, this UR is internally inconsistent; defendant denied home health care services because the request was for assistance with ADLs and not for any specific health care. This UR does not specify that applicant’s attorney’s office was served although it was addressed to applicant at the address for his attorney’s office. On November 27, 2017, another UR certified home health care for eight hours a week for 30 days. (Defendant's Exhibit B.) The record does not reflect that this UR was served on applicant’s attorney. On October 9, 2017, defendant’s UR issued, claiming to supersede the July 16, 2016 UR and denying home health care. (Defendant's Exhibit C.) Again, this UR was not served on applicant’s attorney. In a significant panel decision, the Appeals Board held that a UR decision that is timely made, but is not timely communicated, is untimely. (Bodam v. San Bernardino County/Dept. of Social Services (2014) 79 Cal.Comp.Cases 1519.) As theses URs were not properly served, the WCJ obtained jurisdiction to adjudicate whether home health care services were reasonable and necessary medical treatment.
Significant panel decisions are not binding precedent in workers’ compensation proceedings; however, they are intended to augment the body of binding appellate court and en banc decisions and, therefore, a panel decision is not deemed “significant” unless, among other things: (1) it involves an issue of general interest to the workers' compensation community, especially a new or recurring issue about which there is little or no published case law; and (2) all Appeals Board members have reviewed the decision and agree that it is significant. (See Elliott v. Workers’ Comp. Appeals Bd. (2010) 182 Cal.App.4th 355, 361, fn. 3 [75 Cal.Comp.Cases 81]; Larch v. Workers’ Comp. Appeals Bd. (1999) 64 Cal.Comp.Cases 1098, 1099-1100 (writ den.); see also Cal. Code Regs., tit. 8, §§ 10305(r), 10325(b).)
The parties proceeded to trial over “applicant's entitlement to home health care, both retroactively and prospectively, as provided by Belinda Espino” (MOH/SOE 7/20/17, 3: 7-8). On March 4, 2019, the WCJ issued the Amended Joint Findings of Fact and Order and awarded the home health care. Defendant sought reconsideration.
DISCUSSION
A. The Utilization Review Determinations Dated October 9, 2017 and November 27, 2017 Were Untimely and Invalid. Therefore, the Determination of Medical Necessity for The Treatment Requested May Be Made by the Appeals Board.
Labor Code section 4600(h) provides:
Home health care services shall be provided as medical treatment only if reasonably required to cure or relieve the injured employee from the effects of the employee’s injury and prescribed by a physician and surgeon licensed pursuant to Chapter 5 (commencing with Section 2000) of Division 2 of the Business and Professions Code, and subject to Section 5307.1 or 5307.8. The employer is not liable for home health care services that are provided more than 14 days prior to the date of the employer’s receipt of the physician’s prescription. (§ 4600(h).)
In our en banc decision in Neri Hernandez v. Geneva Staffing, Inc. dba Workforce Outsourcing, Inc. (2014) 79 Cal.Comp.Cases 682, 691 (Appeals Board en banc) (Neri Hernandez), we held that changes made by SB 863 apply to requests for home health care in all cases that were not final as of the effective date, January 1, 2013, regardless of the date of injury or dates of service. In this matter, the cases were not finalized until the July 25, 2015 Joint Compromise and Release.
In Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II), the Appeals Board held that if a UR decision is untimely, the UR decision is invalid and not subject to independent medical review (IMR). The Dubon II decision further held that the Appeals Board has jurisdiction to determine whether a UR decision is timely. (Id.) If a UR decision is untimely, the determination of medical necessity for the treatment requested may be made by the Appeals Board. (Id. at p. 1300.) As stated by the Appeals Board in Dubon II, “timeliness cannot be fixed. Whether a UR decision is timely is a legal determination and must be decided by a WCJ. An untimely UR decision is the same as no UR.” (Id. at p. 1311.) Here, the UR decisions dated October 9, 2017 and November, 27, 2017 are defective because there were not served on applicant’s attorney.
"[W]here a defendant's UR decision was untimely, the injured employee is nevertheless entitled only to 'reasonably required' medical treatment (§ 4600(a)) and it is the employee's burden to establish his or her entitlement to any particular treatment (§§ 3202.5, 5705), including showing either that the treatment falls within the presumptively correct MTUS or that this presumption has been rebutted. (§ 4604.5; see also § 5307.27.)." (Dubon II, supra, 79 Cal.Comp.Cases at p. 1312; see also Sandhagen, supra, 44 Cal.4th at p. 242 [the employee bears the burden of proving treatment is reasonable and necessary by "demonstrating that the treatment request is consistent with the uniform guidelines (§ 4600(b)) or, alternatively, rebutting the application of the guidelines with a preponderance of scientific medical evidence (§ 4604.5)"].) Applicant therefore bears the burden of showing entitlement to the disputed treatment based on substantial medical evidence. (Dubon II, supra, 79 Cal.Comp.Cases at p. 1312; see also Lab. Code, §§ 5903, 5952(d); Lamb v. Workmen's Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310] [decisions of the Appeals Board must be supported by substantial evidence].)
B. Home health care services were prescribed by Dr. Sperling in his February 6, 2002 Report and by Dr. Sohn in his January 22, 2008 AME report.
In Neri Hernandez, supra, 79 Cal.Comp.Cases at 691, we discussed the requirement in section 4600(h) that home health care services must be prescribed by a “physician” licensed pursuant to Business and Professions Code section 2000 et seq. We concluded that for “the purposes of home health care services, the prescription must be by a practitioner who is licensed by the Medical Board or Osteopathic Medical Board.” (Id., p. 692.)
The specific prescription requirements for home health care are set forth in sections 4600(h), 4603.2(b)(1), and 5307.8 and our decision in Neri Hernandez. In Neri Hernandez, we held that:
[T]he 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.
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[A]n oral or written communication which meets the minimum requirements is sufficient to meet the condition in section 4600(h) that home health care services be prescribed. (Id. at p. 693.)
In this matter, Dr. Sperling is a licensed physician, and his February 6, 2002 medical report on letterhead is dated, it is in writing, and it is signed. The report, directed to the employer’s counsel, states applicant needs arthroscopic knee surgery, and home health care services eight hours a week plus on-call transportation. After surgery he will need wound care and home health care services four hours daily, three times a week for six weeks. (Court Ex. S.)
With respect to the AME, Dr. Sohn, he is a licensed physician, his January 22, 2008 medical report is dated, signed, and in writing. He notes that applicant needs transportation and home health care four hours a day, twice a week. (Court Ex. Z.) The opinions of an AME are entitled to substantial weight absent a showing that they are based on an incorrect factual history or legal theory, or are otherwise unpersuasive in light of the entire record. (See, Powers v. Workers' Comp. Appeals Bd. (1986) 179 Cal.App.3d 775 [51 Cal.Comp.Cases 114]; Siqueiros v. Workers' Comp. Appeals Bd. (1995) 60 Cal.Comp.Cases 150 (writ den.).)
We conclude that Dr. Sperling’s February 6, 2002 Report and Dr. Sohn’s January 22, 2008 AME report both qualify as prescriptions within the meaning of section 4600(h). (Rodriguez v. Air Eagle, Inc., 2015 Cal. Wrk. Comp. P.D. LEXIS 3.)
C. When an Employer Receives Notice an Injured Worker May Need Medical Treatment, It Has a Duty to Conduct a Reasonable And Good Faith Investigation.
When an employer learns that an injured worker may have a need for medical treatment, the employer has a duty to investigate. The duty to investigate was reiterated in Neri Hernandez:
[Under] circumstances when an employer receives other notice that home health care services may be needed or are being provided, an employer has a duty under section 4600 to investigate. (See Braewood Convalescent Hosp. v. Workers' Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 165 [48 Cal.Comp.Cases 566].) In addition to the judicially announced obligation to do more than passively sit by, an employer also has a regulatory duty to conduct a reasonable and good faith investigation to determine whether benefits are due. (See, Cal. Code Regs., tit. 8, § 10109.) (Id. at p. 694.)
On this record, there is no evidence of a change in applicant’s condition or circumstances that eliminates the need for the prescribed home health care. To the contrary, applicant’s physicians have reported that he has a need for homecare, and defendant received that information. An employer has the duty to provide reasonable medical treatment upon learning of the need. (Lab. Code, § 4600). This was made clear in Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 165 [48 Cal.Comp.Cases 566], where the Supreme Court wrote as follows:
Section 4600 requires more than a passive willingness on the part of the employer to respond to a demand or request for medical aid. [] This section requires some degree of active effort to bring to the injured employee the necessary relief. [] Upon notice of the injury, the employer must specifically instruct the employee what to do and whom to see, and if the employer fails or refuses to do so, then he loses the right to control the employee’s medical care and becomes liable for the reasonable value of self-procured medical treatment. (Citations omitted.)
In Ramirez v. Workers' Comp. Appeals Bd. (1970) 10 Cal.App.3d 227, 234 [35 Cal.Comp.Cases 383], the Court said:
“Upon notice or knowledge of a claimed industrial injury an employer has both the right and duty to investigate the facts in order to determine his liability for workmen's compensation, but he must act with expedition in order to comply with the statutory provisions for the payment of compensation which require that he take the initiative in providing benefits. He must seasonably offer to an industrially injured employee that medical, surgical or hospital care which is reasonably required to cure or relieve from the effects of the industrial injury…”
It does not appear that defendant investigated applicant’s need for home health care or provided it pursuant to the opinions of the AME and Dr. Sohn despite its duty to expeditiously and actively investigate. (Ramirez, supra, 10 Cal.App.3d at p. 234.) Although the AME stated that applicant needed home health care for eight weeks in 2002, the record does not reflect that defendant provided it or investigated applicant’s need. Instead, post-surgery care was provided by applicant’s daughter. In his January 22, 2008 report, Dr. Sohn prescribed home health care, eight hours weekly, which was open-ended and did not limit the duration that applicant would need these services. Because defendant did not take an active role in providing the needed medical treatment, it “becomes liable for the reasonable value of self-procured medical treatment.” (Bolton, supra, at p. 165.)
D. Home Health Care Services May Be Provided by a Relative.
Applicant’s entitlement to home health care as provided by Belinda Espino was the primary issue at trial. Defendant contended that Ms. Espino should be barred from reimbursement because her logs did not comply with section 4603.2(b)(1)(A).
Section 4603.2(b)(1)(A) provides,
A provider of services provided pursuant to Section 4600, including, but not limited to, physicians, hospitals, pharmacies, interpreters, copy services, transportation services, and home health care services, shall submit its request for payment with an itemization of services provided and the charge for each service, a copy of all reports showing the services performed, the prescription or referral from the primary treating physician if the services were performed by a person other than the primary treating physician, and any evidence of authorization for the services that may have been received. This section does not prohibit an employer, insurer, or third-party claims administrator from establishing, through written agreement, an alternative manual or electronic request for payment with providers for services provided pursuant to Section 4600.
With respect to whether the home health care logs comply with 4603.2(b)(1)(a), the WCJ wrote in her Report:
“[B]ased on the evidence submitted, while, and it appears that petitioner did have the prescription for home healthcare either by way of the AME reporting, Dr. Sperling’s February 2, 2002 report as well as the June 21, 2016 prescription of Dr. Nagelburg, Ms. Espino’s lack of including these reports with her home health care as well as a more precise itemization, could be seen as a curable defect especially in light of this judge finding that the parties were to adjust the hourly rate as well as only allowing the home health care for six weeks post-surgery in 2002 for wound care as well as with assistance with daily living activities four hours a day for two weeks and then four hours a day, three days a week and then eight hours a week (4 hours, twice a week) after January 22, 2008, subject to proof at the hourly rate.” (Report, p. 9.)
In this case, the home health care logs appear to exceed the amount of care that was prescribed as reasonable and necessary. The WCJ correctly based the Award of home health care on the evidence submitted and the prescriptions from the AME and applicant’s treating physician.
In Henson v. Workmen's Comp. Appeals Bd. (1972) 27 Cal.App.3d 452 [103 Cal. Rptr. 785], the worker's treating physician knew that practical nursing services were required and that the worker's wife was providing them. Henson found that the wife could be compensated for those services. (Id. at pp. 461–462.) Smyers v. Workers' Comp. Appeals Bd. (1984) 157 Cal.App.3d 36 [203 Cal. Rptr. 521] held that when a physician recommended or prescribed, for medical reasons, that housekeeping services be performed for the injured worker, those services could be reimbursed under section 4600 as medical treatment reasonably required to cure or relieve the effects of the injury. (157 Cal.App.3d at pp. 41–43.) (See also, Hodgman v. Workers' Comp. Appeals Bd. (2007) 155 Cal.App.4th 44, 54 [65 Cal. Rptr. 3d 687] [mother of injured worker, who was also his conservator, could be reimbursed for monitoring and managing her son's health care needs].)
In this matter, defendant was on notice that applicant's daughter was providing the requested home-based services. Nonetheless, defendant took no affirmative steps to meet its legal obligation to provide applicant with necessary and required treatment. Instead, it appears that defendant took advantage of applicant's daughter to avoid its responsibilities to provide applicant with reasonable and necessary care. (§ 4600; Henson, supra, 27 Cal.App.3d at pp. 457–458 [37 Cal.Comp.Cases 564] ["Nursing services include services of a practical nurse and the fact that the services were rendered by a family member of the injured employee does not relieve the employer of its statutory obligation to pay for them."].)
Regardless of whether a claim of reimbursement is raised by the applicant or asserted by a lien claimant, the claimant must show that the provided services and claimed cost or fee are reasonable. (See, e.g. Torres v. AJC Sandblasting (2012) 77 Cal.Comp.Cases 1113 (Appeals Board en banc); Kunz v. Patterson Floor Coverings, Inc. (2002) 67 Cal.Comp.Cases 1588 (Appeals Board en banc); Tapia v. Skill Masters Staffing (2008) 73 Cal.Comp.Cases 1338 (Appeals Board en banc).) In her Report, the WCJ noted that Ms. Espino testified she expected to be paid as a certified nurse assistant (CNA), at the rate of $15.00 to $19.00 per hour. The WCJ stated, “this would be speculative since she had never worked as a CNA.” (Report, pp. 8-9.) The WCJ ordered the parties to adjust the rate with jurisdiction reserved in the event of a dispute.
E. An Issue May Not Be Raised for the First Time on Reconsideration.
The parties disputed the reimbursement rate for Ms. Espino’s services, yet defendant never specifically raised the issue of her qualifications at the pre-trial conference, during identification of stipulations and issues at the commencement of trial on July 20, 2017, or at any time during presentation of evidence at trial.
Defendant may not raise an issue for the first time on reconsideration. (§ 5502(e)(3); City of Anaheim v. Workers' Comp. Appeals Board (Evans) (2005) 70 Cal.Comp.Cases 237 (writ denied); Fleming v. Workers’ Comp. Appeals Board (1998) 63 Cal.Comp.Cases 762 (writ denied); Cottrell v. Workers’ Comp. Appeals Board (1998) 63 Cal.Comp.Cases 760 (writ denied).) Because the issue of Ms. Espino’s qualifications was not previously raised, we consider the issue waived and will not consider it on reconsideration. (Sonoma County Office of Education v. Workers’ Comp. Appeals Bd. (Pasquini) (1998) 63 Cal.Comp.Cases 877 (writ den.), Paula Ins. Co. v. Workers’ Comp. Appeals Bd. (Diaz) 62 Cal.Comp.Cases 375, writ den.)
F. The WCJ Did Not Err in Awarding Home Health Care.
The WCJ provided her reasoning for awarding home health care as follows:
[B]ased on the evidence submitted by the parties, it appeared that applicant would be entitled to home healthcare after 2002 for post-surgery wound care as well as with assistance with daily living activities four hours a day for two weeks and the four hours a day, three days a week for six weeks. As for the periods thereafter, it did not appear that any substantial medical evidence was submitted regarding home healthcare needs for applicant until the AME report of Dr. Sohn that discusses home healthcare date January 22, 2008 which notes that applicant should have home care for four hours a day, twice a week. (Report, p. 8.)
The WCJ noted that Dr. Sohn did not change his opinion that applicant needed eight hours a week of home health care. Based on the evidence submitted, including prescriptions from the AME and applicant’s treating physician, the WCJ found that applicant was entitled to home health care for post-surgery wound care in 2002, and assistance with ADLs four hours a day for two weeks, then four hours a day, three times a week for six weeks. For the period thereafter, the WCJ found that after January 22, 2008, applicant was entitled to home health care services of four hours a day, twice a week. Here, in our review of the medical records and the file, we do not find any evidence that applicant no longer needs home health care services. The medical treatment awarded by the WCJ in this matter was reasonable and necessary, and defendant is obligated to continue providing such treatment absent a change in applicant’s condition or circumstances.
On this record, the WCJ’s March 4, 2019 Joint Amended Findings of Fact and Award is justified. We affirm the decision.
For the foregoing reasons,
IT IS ORDERED as the Decision After Reconsideration of the Workers’ Compensation Appeals Board, that the March 4, 2019 Joint Amended Findings of Fact and Award is AFFIRMED.
I CONCUR, MARGUERITE SWEENEY, COMMISSIONER, JOSé H. RAZO, COMMISSIONER.
SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD.
JAVIER ESPINO
GRAIWER & KAPLAN
LEWIS, BRISBOIS, BISGAARD & SMITH