On June 12, 2014, in Roque Neri Hernandez v. Geneva Staffing, (Hernandez) the WCAB determined home health care is subject to Labor Code sections 4600(h), 4603.2(b)(1) and 5307.8 regardless of the date of injury, when no final decision on the request had been made before January 1, 2013. The WCAB also clarified what steps must be taken by the injured worker to establish that the care was necessary, the nature and extent of the home care, and the information necessary for obtaining home care reimbursement.
Hernandez, a machine operator, suffered a crushing injury to his right hand on July 11, 2011. Three months after his injury Hernandez’ treating physician provided a handwritten note indicating that Hernandez’s wife had been providing home care since the injury on a constant basis and that Hernandez would require continuous care on an ongoing basis. The note did not indicate the type or duration of the required care. After five hand surgeries, Hernandez was evaluated by an Agreed Medical Evaluator who determined that the remaining hand impairment was so severe that Hernandez had essentially lost all use of the right upper extremity. The AME prescribed 6 hours of unskilled attendant care per day.
At trial on the issue of home care need and reimbursement, Hernandez’s spouse testified about the care she provided and that she lost her job due to losing time to care for her husband. On May 30, 2013, the WCJ issued a Finding and Award granting Hernandez home health care beginning from the date of injury and continuing thereafter at the same rate of pay his spouse had been earning at her job. The WCAB partially disagreed with the WCJ’s holding, and remanded the case back to the trial level to further develop the record.
On January 1, 2013, the legislature enacted SB863 adding Labor Code section 4600(h). The subsection allows for reimbursement of home health care services as medical treatment, which are to begin no earlier than 14 days before the first request for care is conveyed to the defendant via a prescription from a physician. By incorporating the obligations to comply with the official fee schedule, the subsection further addressed inconsistencies in the cost and reimbursement of home health care in California’s Workers’ compensation system.
Hernandez contended that the statutory changes did not apply to his date of injury, since it pre-dated the statute’s effective date. However, the Board determined that SB863 applies to all matters pending on its effective date, no matter the date of injury. Thus, “4600(h), 4603.2(b)(1) and 5307.8 apply to any requests for home health care services or for payment thereof where no final decision on the request had issued before January 1, 2013.”
The Employer sought to limit the duration of care because the prescription of the treating physician was not sufficient to meet the requirements of the statutes. The WCAB determined that a valid prescription required the following: could be oral or written; must issue from a physician licensed by the Medical Board or Osteopathic Medical Board; must list the name of the patient, date of issue, and contact information for the prescriber; and the license classification and must be signed by the physician in writing. As a result, it found Hernandez’s treating physician’s prescription was sufficient.
The WCAB also determined that the applicant carries the burden of proving that the care was prescribed by a medical doctor, the nature and extent of the required care, that the prescription was received by the employer, and the date it was received. Further, the WCAB held that “an injured worker continues to bear the burden to demonstrate a reasonable hourly rate for the type of services provided and the number of reasonably required hours based on substantial evidence,” when the service is not covered by a fee schedule or as in this instance where no fee schedule currently exists for the provided services.
Thus, the Board held it was improper to calculate reimbursement using the spouses pre-termination earnings. The calculation must utilize an appropriate rate for a similar caregiver. In order to determine the proper reimbursement, evidence of necessary services and services the applicant’s spouse actually performed before and after the injury are required.
Hernandez is the first case to clarify the requirements necessitated by the recently enacted home health care statutes. The WCAB also reiterated the employer’s obligation to investigate a claim for home health care services, even if an actual demand has not been made. “[W]hen an employer receives notice that home health care services may be needed or are being provided, an employer has a duty under 4600 to investigate.”
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