ADJ11775583 · September 23, 2026

The WCAB found that the February 16, 2021 UR decision established the need for continued home health care services until a permanent solution is found, and that the WCAB has jurisdiction over the dispute as the March 16, 2021 RFA did not present a new question of medical necessity triggering IMR jurisdiction.

From the decision · page 17Because the February 16, 2021 UR decision made clear that interim home health care services would be necessary until a permanent solution could be found to address applicant’s home health needs, and because the record reflects no efforts to reach such resolution, we agree with the WCJ’s decision to enforce the February 16, 2021 UR decision. However, we also observe that the March 16, 2021 RFA did not present a previously unresolved question of medical necessity, and as such, we do not concur with the WCJ’s burden shifting analysis. Accordingly, we will amend Finding of Fact No. 3 to reflect that the UR decision of February 16, 2021 determined that the nature of applicant’s condition requires the provision of continued home health care services until a more specific, permanent solution is found. We will then amend the Order to reflect that defendant must continue to provide the specified home health care services, six hours per day, five days per week, until such time as the parties can demonstrate reasonable efforts to identify and implement a permanent solution to applicant’s need for home health care services.

The February 16, 2021 UR decision established the need for continued home health care services until a permanent solution is found.

Favours Applicant prevailed

This decision formed the basis for the WCAB's order requiring defendant to continue providing home health care services.

From the decision · page 17Because the February 16, 2021 UR decision made clear that interim home health care services would be necessary until a permanent solution could be found to address applicant’s home health needs, and because the record reflects no efforts to reach such resolution, we agree with the WCJ’s decision to enforce the February 16, 2021 UR decision. However, we also observe that the March 16, 2021 RFA did not present a previously unresolved question of medical necessity, and as such, we do not concur with the WCJ’s burden shifting analysis. Accordingly, we will amend Finding of Fact No. 3 to reflect that the UR decision of February 16, 2021 determined that the nature of applicant’s condition requires the provision of continued home health care services until a more specific, permanent solution is found. We will then amend the Order to reflect that defendant must continue to provide the specified home health care services, six hours per day, five days per week, until such time as the parties can demonstrate reasonable efforts to identify and implement a permanent solution to applicant’s need for home health care services.

The March 16, 2021 RFA did not present a new, unresolved question of medical necessity to trigger the IMR process.

Favours Applicant prevailed

This supported the WCAB's conclusion that it retained jurisdiction over the dispute and that the prior UR decision remained effective.

From the decision · page 17Because the February 16, 2021 UR decision made clear that interim home health care services would be necessary until a permanent solution could be found to address applicant’s home health needs, and because the record reflects no efforts to reach such resolution, we agree with the WCJ’s decision to enforce the February 16, 2021 UR decision. However, we also observe that the March 16, 2021 RFA did not present a previously unresolved question of medical necessity, and as such, we do not concur with the WCJ’s burden shifting analysis. Accordingly, we will amend Finding of Fact No. 3 to reflect that the UR decision of February 16, 2021 determined that the nature of applicant’s condition requires the provision of continued home health care services until a more specific, permanent solution is found. We will then amend the Order to reflect that defendant must continue to provide the specified home health care services, six hours per day, five days per week, until such time as the parties can demonstrate reasonable efforts to identify and implement a permanent solution to applicant’s need for home health care services.

Applicant requires assistance for all activities of daily living due to industrial injury; instituted multi-modality treatment including home health care consultation.

Dr. Miller's evaluation and treatment plan support the need for home health care services due to industrial injury.

From the decision · page 3(Ex. 5, Report of Lawrence Miller, M.D., dated November 23, 2020, p. 1.) Dr. Miller observed that applicant “requires assistance for all activities of daily living,” and that applicant’s son “assists her with bathing, preparing meals, using the toilet, and getting dressed. She has very poor vision and does not venture out on her own. She is afraid of falling and injuring herself. She is also suffering from urinary incontinence.” (Id. at p. 5.) Dr. Miller’s summary noted applicant to be “an unfortunate 62-year-old former caregiver who is doing poorly following a work fall resulting in intertrochanteric fracture.” (Id. at p. 11.) Applicant was observed to be “barely functioning,” with “marked induration of both lower extremities with erythema and postphlebitic changes.” (Ibid.) Dr. Miller instituted a multi-modality treatment plan including durable medical equipment and a home health care consultation. On December 3, 2020, a utilization review (UR) physician certified various requested treatment modalities as medically necessary, including the purchase of adult diapers, a wheelchair, a shower chair, a toilet lift, and a course of aquatic therapy. (Ex.

Diagnosed right femur fracture and sprain/strain of right shoulder and wrist; identified permanent partial disability and need for continuing medical care.

QME's diagnosis and identification of continuing medical care needs support industrial injury causation and treatment necessity.

From the decision · page 33, UR Determination, dated December 3, 2020.) In a separate UR decision on the same day, a UR physician certified the requested nursing home care assessment and consultation. (Ex. 4, Utilization Modified Approval, dated December 3, 2020.) On December 17, 2020, QME Dr. Nussbaum conducted an orthopedic evaluation of applicant, and diagnosed intratrochanteric and subtrochanteric right femur fracture, status post open reduction and internal fixation, and a sprain/strain right shoulder and right wrist. Dr. Nussbaum further identified collateral nonindustrial diagnoses including chronic bilateral knee pain secondary to osteoarthritis and morbid obesity, morbid obesity, poorly controlled diabetes mellitus, insulin dependent diabetes mellitus, and triggering bilateral middle fingers. (Ex. B, Report of Richard Nussbaum, M.D., dated December 17, 2020, at p. 28.) The QME identified permanent partial disability and indicated that applicant would need continuing medical care. (Id. at p. 29.) 3

Lab. Code, §§ 4600, 4604, 4610, 4610.5, 4610(k), 5304

The Workers' Compensation Appeals Board has jurisdiction over controversies arising under Labor Code sections 4600 to 4605, except where IMR process applies for valid UR decisions denying or modifying treatment based on medical necessity.

The WCAB has jurisdiction over medical treatment disputes unless a valid UR decision triggers the IMR process; here, the March 16, 2021 RFA did not present a new question of medical necessity, so WCAB jurisdiction applies.

From the decision · page 6Section 5304 states in pertinent part that “[t]he appeals board has jurisdiction over any controversy relating to or arising out of Sections 4600 to 4605….” (Lab. Code, § 5304; see §§ 5300, 5301.) Section 4604 provides that “[c]ontroversies between employer and employee arising under this chapter shall be determined by the appeals board, upon the request of either party, except as otherwise provided by Section 4610.5.” (Lab. Code, § 4604.) Pursuant to section 4610.5, IMR is the exclusive remedy for an employee challenging a valid, timely UR determination. (Lab. Code, § 4610.5(a).) Section 4610.5 provides for review of disputes by IMR when UR has modified or denied the medical treatment request as not medically necessary. UR decisions validly obtained in compliance with section 4610 will trigger the IMR process of section 4610.5, in which case jurisdiction over the controversy rests solely with the IMR process. In contrast, when the underlying UR decision is not validly obtained or is not timely pursuant to section 4610, there is no basis upon which to trigger the IMR process of section 4610.5.

Lab. Code, § 4600; Henson v. Workmen's Comp. Appeals Bd. (1972) 27 Cal.App.3d 452; McCoy v. I.A.C. (1966) 64 Cal. 2d 82

Employers have an affirmative statutory duty to provide medical treatment reasonably required to cure or relieve the effects of industrial injury, regardless of family member availability.

The employer's duty to provide medical treatment is not relieved by family member availability; the employer must provide or reimburse medically necessary home health care services.

From the decision · page 13(Id. at pp. 4-5.) Unfortunately, the reviewing physician’s discussion is not a model of clarity. We note initially that the physician’s statement that because applicant’s “son works and therefore should be capable of helping her on weekends when he is not working” is speculative, unsupported in the factual and medical record, and legally suspect. Defendant has an affirmative statutory duty to provide “[m]edical, surgical … and hospital treatment, including nursing … which is reasonably required to cure or relieve from the effects of the injury ….” (Lab. Code, § 4600.) The availability of a family member to provide care that has been determined to be medically necessary does not relieve the employer of its statutory obligation to provide those services or to reimburse the cost of their provision. (Henson v. Workmen's Comp. Appeals Bd. (1972) 27 Cal.App.3d 452, 457 [37 Cal.Comp.Cases 564]; McCoy v. I.A.C. (1966) 64 Cal. 2d 82, 86 [31 Cal.Comp.Cases 93].) Nor does the reviewing physician explain how he arrived at a figure of 90 hours of aggregate home health care services. PTP Dr.

Applicant's activities of daily living are significantly compromised by a combination of industrial and nonindustrial conditions; industrial injury contributes to the need for home health care services.

From the decision · page 16(Cal. Code Regs., tit. 8, § 10109.) Thus, and upon reasonable notice of the need to treatment necessary to cure or relieve from the effects of industrial injury, the employer has an affirmative obligation to promptly investigate the facts in order to determine its liability for workers’ compensation and take the initiative in providing benefits. (Ramirez, supra, 10 Cal.App.3d at p. 234.) The duty to seasonably investigate is triggered upon notice that home health care or home modification services may be needed or are being provided. (Neri Hernandez, supra, 79 Cal.Comp.Cases at p. 695.) Here, the record clearly establishes that applicant’s activities of daily living are significantly compromised through a combination of industrial and nonindustrial conditions; that applicant’s industrial injury is contributing in part to the need for home health care services; and that the reviewing UR physician has endorsed the need for interim services until such time as a permanent solution addressing applicant’s home health care needs can be found. Upon receipt of the February 16, 2021, defendant had an affirmative obligation to promptly investigate the facts of applicant’s condition and circumstance and to take appropriate proactive action to provide reasonable benefits. (Ex.