ADJ7841879 · September 28, 2022

The WCJ and WCAB found that lien claimant Richard Dier's services as agreed case manager were reasonably necessary and that defendant failed to show good cause for removal, supported by medical opinions and lack of evidence of improper performance.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

The WCJ and WCAB found the hourly rates of $25 for home health care and $55 for injections reasonable based on comparison to third party provider rates and the proficiency of the applicant.

From the decision · page 14Here, as stated by the WCJ in the Report, the record shows that the services provided by the applicant are akin to those of an independent contractor--and that defendant has paid a third party provider $25.00 per hour rate for similar health care services that do not include provision of injections and would have to pay a third party provider $55.00 per hour for services including provision of injections. (Report, pp. 4-5.) Accordingly we are unable to discern merit to defendant's contention that the rates of reimbursement for the applicant's services are excessive or unreasonable.

The WCAB found lien claimant entitled to penalties and interest under section 4603.2(b)(2) due to untimely payment of invoices, but deferred ruling on sanctions and attorney fees under sections 5813 and Rule 10786.

From the decision · page 18Accordingly, as our Decision After Reconsideration, we will affirm the F&A and Supplemental F&A, except that we will amend to correct the clerical errors to provide the credit for the amount previously paid as to dates of service since June 2, 2018, to find that it is not reasonable to impose sanctions against defendant in favor of applicant and that the issue of whether lien claimant is entitled to sanctions and attorney's fees pursuant to sections 5813 and Rule 10786 is deferred, and to find that lien claimant is entitled to section 4603.2(b)(2) penalties and interest in an amount to be adjusted by the parties, with jurisdiction reserved to the WCJ in the event of a dispute; and we will return the matter to the trial level for further proceedings consistent with this decision.

Medical opinions from Drs. Zehler, Miller, Patterson, and Hoang support the necessity of lien claimant Richard Dier's services as case manager.

Favours Applicant prevailed

These opinions establish the medical necessity of the case manager services, favoring applicant's entitlement.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

Defendant failed to present evidence of improper performance or prejudice from lien claimant's ongoing service.

Favours Applicant prevailed

Lack of evidence to justify removal of lien claimant supports the WCJ and WCAB's decision to retain him.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

The hourly rates of $25 for home health care and $55 for injections are reasonable based on comparison to third party provider rates and proficiency of the applicant.

Favours Applicant prevailed

Supports the award of these rates for home health care services to applicant.

From the decision · page 14Here, as stated by the WCJ in the Report, the record shows that the services provided by the applicant are akin to those of an independent contractor--and that defendant has paid a third party provider $25.00 per hour rate for similar health care services that do not include provision of injections and would have to pay a third party provider $55.00 per hour for services including provision of injections. (Report, pp. 4-5.) Accordingly we are unable to discern merit to defendant's contention that the rates of reimbursement for the applicant's services are excessive or unreasonable.

Lien claimant's invoices were not paid within 45 days, triggering penalties and interest under Labor Code section 4603.2(b)(2).

Favours Applicant prevailed

Supports lien claimant's entitlement to penalties and interest for untimely payment.

From the decision · page 1710, 12-13.) Here, as explained above, the record shows that the parties agreed to lien claimant's billing rate, that defendant never objected to any of lien claimant's invoices by submitting an Explanation of Review, and that there is no evidence that any of lien claimant's invoices were paid within forty- five days of receipt. (Report, pp. 13-14.) It follows that section 4603.2(b)(2) penalty and interest attach by operation of law to lien claimant's invoices to the extent that they have not been timely paid. We therefore conclude that lien claimant is entitled to penalties and interest pursuant to section 4603.2(b)(2). Accordingly, we will amend the F&A to find that lien claimant is entitled to

Recommended maintaining consistency in case management due to complexity and family trust in lien claimant Richard Dier.

Supports the necessity of lien claimant's services as case manager.

Requested transportation for applicant's activities of daily living as reasonable to cure and relieve effects of injury.

Recommended lien claimant services as reasonably necessary for applicant's treatment.

Supports the necessity of lien claimant's services as case manager.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

Labor Code section 4600

Employer must provide medical treatment reasonably required to cure or relieve the injured worker from the effects of injury under Labor Code section 4600.

Applied to determine compensability of home health care and case manager services.

From the decision · page 13employer must provide "[m]edical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatuses, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve the injured worker from the effects of his or her injury." (§ 4600 (a).) It is well-settled that home health care is an appropriate benefit under section 4600, and that home health care services need not be provided by a nursing professional to be compensable. (Henson v. Workers' Comp. Appeals Bd. (1972) 27 Cal.App.3d 452 (awarding compensation to wife of injured worker who provided home healthcare to injured worker); Smyers v. Workers' Comp. Appeals Bd. (1984) 157 Cal. App. 3d 36, 42 (housekeeping services reimbursable where they are "necessary and reasonable in order to allow the injured worker to fully comply with the treatment prescribed by [the applicant's] physician").)

Labor Code section 4603.2(b)(2)

Penalties and interest attach by operation of law to unpaid medical invoices under Labor Code section 4603.2(b)(2).

Applied to find lien claimant entitled to penalties and interest for untimely payment of invoices.

From the decision · page 1710, 12-13.) Here, as explained above, the record shows that the parties agreed to lien claimant's billing rate, that defendant never objected to any of lien claimant's invoices by submitting an Explanation of Review, and that there is no evidence that any of lien claimant's invoices were paid within forty- five days of receipt. (Report, pp. 13-14.) It follows that section 4603.2(b)(2) penalty and interest attach by operation of law to lien claimant's invoices to the extent that they have not been timely paid. We therefore conclude that lien claimant is entitled to penalties and interest pursuant to section 4603.2(b)(2). Accordingly, we will amend the F&A to find that lien claimant is entitled to

Credible testimony of lien claimant Richard Dier and medical reports from Drs. Zehler, Miller, Patterson, and Hoang supporting necessity of case manager services.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.

Defendant failed to show evidence of improper performance or prejudice from lien claimant's ongoing service.

From the decision · page 13In this case, the record shows that the parties stipulated in 2016 that it was reasonable and necessary for lien claimant to act as applicant's case manager, and defendant has presented no evidence demonstrating good cause for his removal. (Report, p. 2.) Specifically, as stated by the WCJ in the Report, the record (1) shows that Drs. Zehler, Miller, Patterson and Hoang have opined that lien claimant's services are reasonably necessary for applicant's treatment; (2) contains no evidence that lien claimant improperly performed any service or could be replaced by another case manager familiar with applicant's medical condition and symptomatology; and (3) reveals defendant is not prejudiced by lien claimant's ongoing service because it retains the right to timely object to any service or billing, including the timeliness thereof, it deems unreasonable. (Report, pp. 7-13.) Accordingly, we are unable to discern support for defendant's contention that the WCJ erroneously failed to find that lien claimant should be removed as agreed case manager.