EK HEALTH

by Steve Kline, Esq.
EK Health Services' Legal Counsel

In late January, 2011, in a published opinion, the Second District Court of Appeal broke new ground in the area of attendant home health care and the standards to determine its value.

The facts for State Farm Insurance v WCAB (Pearson) are as follows:   Francisca Apparicio injured her back and bilateral extremities in 1999.  She also made a second claim for cumulative trauma from 1993 to January, 1995.   The matter was resolved in August, 2006 with a stipulated award of 100% disability and future medicals for psyche, lumbar spine, right upper extremity and fibromyalgia.  Jurisdiction was reserved over the lien claim of Carl Pearson, her husband, for his attendant care and transportation services.

Initially, the WCJ disallowed the lien on the grounds that Mr. Pearson had failed to provide substantial medical evidence of the kind and amount of services his wife reasonably required.  A petition for reconsideration was granted and the WCJ was ordered to develop the record.   In undergoing that process, the parties could not agree on a medical expert.  Consequently, the WCJ selected a physician  to “conduct an evaluation and to provide an expert opinion on Apparicio’s past and present life care needs, including the nature of home care services and the hours per day they were required.”

After requesting the physician to do a supplemental report, the WCJ issued a supplemental findings and award, ordering a life care plan to be implemented; found that Mr. Pearson had provided attendant care services to his injured wife 24 hours per day from July 24, 2003; the value of Pearson’s services, in the capacity of an LVN, was $30 per hour, for which Pearson was entitled to reimbursement at $720 per day from July 24, 2003, until implementation of the life care plan by professionals at the employer’s expense.”  The value was approximately $1.5 million.

A petition for reconsideration was filed and denied by the WCAB.  The petition for a writ of mandate to the Court of Appeal was sought.

First, the Court dealt with the evidence supporting monitoring and assistance by Mr. Pearson for 24 hours a day, 7 days a week.  The evidence provided by the lien claimant of his caregiving services which set forth the daily average times that he provided services.   “These times do not total 24 hours per day, except for the final item, “assist [Apparicio] at night,” which was listed as “24 hrs.” An award of compensation based on Pearson’s alleged caregiver services 24 hours per day, seven days per week is therefore unreasonable.”

Then the court moved to the nature & value of the services actually performed.  They noted that “many of those services do not constitute treatment which the employer is required to provide the injured worker.”  Some services provided by a family member in some circumstances may qualify as reasonable and necessary care.  In this matter, because many of services listed, on their face did not appear to be qualified medical services, the matter was remanded back to the trial judge to determine whether the Labor Code §4600 were met.

So at what rate should Mr. Pearson be compensated?  The WCJ had found that the appropriate rate was $30 per hour based on the physician’s statement that an LVN rate would be $35 per hour.  The Court remanded it back for a rate based on the actual non-LVN services that were done by Mr. Pearson.

A leading workers' compensation defense firm recommends that “the time spent by the caregiver must be broken down into activities which can reasonably be considered medical treatment, from those which are incidental to maintenance of the household.” Further they suggest, that the need for home healthcare requires expert medical opinion.     Remember reasonable and necessary medical care to cure or relieve an injury is defined in Labor Code §4600(b) as  “based upon the guidelines adopted by the administrative director pursuant to Section 5307.27 or, prior to the adoption of those guidelines, the updated American College of Occupational and Environmental Medicine's Occupational Medicine Practice Guidelines.”

Family Members seeking compensation for caregiving is not going away, but the Court has now provided clearer guidelines for that cost.

Thanks for your attention.

--- Stephen L. Kline, Esq.
EK Health Legal Counsel