Lately there has been intense interest in how California’s workers’ comp system is dealing with cases of severely disabled workers.
Lions Raisins v. WCAB (Miramontes) could turn out to be important on that issue. More on that case in a moment, but first a little perspective on recent developments.
Today ProPublica and NPR released yet another installment in their series on the devolution of workers’ comp. That piece (see link below) mentions both the Mercado case and Frances Stevens v. Outspoken Enterprises, which is pending at the California Court of Appeal, First District. I’ve discussed these cases in recent blog posts.
The publicity has touched a nerve with the Brown Administration. Another Pro Publica/NPR post quoted a DWC notice and Dr. Rupa Das of the DWC in this fashion:
“In the notice issued Thursday, the Department of Industrial Relations and its Division of Workers’ Compensation said “agreed-upon medical treatment must be honored.”
“Under the 2012 reforms,” the notice said, such care can’t be modified “unless a treating physician provides medical evidence of a change in the injured workers’ condition.”
This would seem to be a DWC statement endorsing the WCAB’s significant panel decision in Patterson V. The Oaks Farm. Patterson dealt with issues concerning a nurse case manager. The full scope of the Patterson doctrine is still unclear and untested, as it is still not even an en banc decision of the board.
Several cases have held that Patterson does not apply to medications.
On the other hand, in the Joel Ramirez v. Kuehne and Nagel case, the Patterson doctrine was applied in a case where Travelers Insurance cut off a severely disabled workers’s 24 hour health care assistance and non-medical transportation that had previously been agreed upon.
Similarly, in Jimenez v. American Wrecking (where there had been a stipulated award to pay for home health care until receipt of a QME or AME report), the panel relied on Patterson for the concept “An employer may not unilaterally terminate medical treatment that was earlier authorized as reasonably required to cure or relieve the injured worker from the effects of the industrial injury unless that termination is supported by substantial medical evidence.
Patterson did not actually involve an award of a nurse case manager as part of a judicial finding but rather, after on and off provision of a nurse case manager, an agreement by defendant to consider further use of a nurse case manager. So it is a bit unclear in some cases what constitutes “agreed upon” treatment so as to trigger the concept that such care can’t be modified absent a showing of change in circumstances.
But as regards home health assistance for severely disabled workers, ProPublic/NPR said this:
“Rupali Das, the division’s medical director, previously said in an interview that the state is planning to update the home health guideline after determining that it was too narrow and “does not meet what we want to have in California.”
The DWC is considering methods to compensate home health care providers, but there was no known indication that the DWC was planning to make these adjustments to home health guidelines until the ProPublic/NPR coverage.
Perhaps the DWC is being shamed into action.
Any discussion of these issues would be incomplete without a mention of Miramontes V. Lions Raisins, case which is currently at the California Court of Appeals First District. Lion Raisins, employer of Mr. Miramontes, has filed a Petition for Writ of Review. At the bottom of this post I’ve attached a copy of the WCAB panel decision in Miramontes as well as the Petition for Writ.
First, a quick review of the facts in Miramontes v. Lions Raisins. After a 2006 injury at Lion (Lion, based in Selma, California, claims to be the world’s largest producer of raisins; somehow Lion became Lions in WCAB pleadings), Mr. Miramontes was found 100% disabled. Future medical was awarded and 8 hours per day home health assistance had been provided subsequent to the award, though the award apparently did not specify home health assistance. Two years after the finding of 100% disability and some six years after a previous treating doctor had justified home health assistance, the adjuster requested a report from the new treating doctor addressing the home care needs.
After months of not receiving such requested letter, the adjuster sent a letter to applicant counsel indicating that if the doctor did not respond then the insurer would terminate all home health care. The following month the adjuster sent a letter saying they were terminating home care because of lack of reponse. The doctor then did comply, sending an RFA prescribing full time home health assistance.
Upon receiving that, the adjuster sent the request through utilization review, which denied all home health assistance.
The workers’ comp judge described Mr. Miramontes as “a paraplegic who cannot even get himself in and out of bed, or in and out of a chair by himself, or in and out of a wheelchair by himself”.
At a trial the workers’ comp judge ordered continuation of 8 hours per day home health assistance for Mr. Miramontes, stating that:
“With regard to the Utilization Review, this judge believes that defendant’s unilateral stoppage of medical treatment to force a new prescription for any medical service that an injured worker has needed for seven years is disingenuous and should not be allowed by the Workers’ Compensation Appeals Board. Defendants forced the treater to provide a prescription so they could do Utilization Review by unilaterally stopping medical treatment in the form of home healthcare. They have presented no evidence that applicant’s condition had changed anytime between October 2013 and February or March 2014 when defendants stopped providing home healthcare. Again, it is common sense that a paraplegic without use or feeling below the waist, that needs catheterization, is not going to need some form of home healthcare.”
Here is the WCAB panel decision in Miramontes v. Lions Raisins:
Here is the Petition for Writ of Review in Miramontes v. Lions Raisins: