Workers Comp Zone


Home health care is a dispute flashpoint in many cases involving significantly injured workers.

But a June 2019 published California Court of Appeal decision from the 2nd DCA, Allied Signal v. WCAB (Wiggs) (see link at the bottom of this post) shows that to win on a home health issue, the courts will require that a worker comply with the UR/IMR process unless there is a valid stipulation  to circumvent the UR/IMR process.

Ms. Wiggs had 9 surgeries over a 14 year period from 1998 to 2012 and was apparently taking multiple medications including opioids. A dispute arose in 2012 about whether she needed home care, and the parties stipulated that an RN would do an assessment and prepare a report to be sent to the treating physicians.

This seems to have been a very practical approach. The RN report recommended housekeeping services two times per month for 4 hours each session, to last for a year. The defendant provided this and also paid monies for some retroactive housekeeping services.

Similar services were apparently provided in 2014 after another RFA was filed requesting services twice a month for 4 hours each visit.

But in 2015 and 2016 there were problems. Wiggs apparently had more surgery (in fact, three between 2014 and 2017).

In 2015 a request was  filed for increased housekeeping services, upping the request from twice a month to once a week. The request was denied by utilization review. The applicant did not appeal the UR denial to IMR.

It is not clear whether in 2015 the parties had discussed returning to the RN  for an assessment.

In any event, instead of appealing UR to IMR, the applicant took the matter to the WCAB, where the WCJ ordered further development of the record, i.e. that the same RN review the reports and do an in-home assessment.

Defendant appealed, and in a split decision (Wiggs v. Allied Signal, 2018 Cal. Wrk. Comp. P.D. LEXIS 421) the WCAB panel upheld the WCJ’s order. Commissioner Razo dissented.

Defendant then sought a writ with the Court of Appeal, which was granted.

The Court of Appeal notes that other similar RFAs were filed, including a 2016 RFA asking for weekly housekeeping four hours per visit. The defendant did not send that RFA out for UR review. This issue is essentially brushed aside by the Court of Appeal, however, which focuses on the handling of the earlier request.

Essentially siding with dissenting WCAB Commissioner Razo, the Court of Appeals noted that the 2012 stipulation to use an RN to resolve the 2012 housekeeping services dispute did not provide an ongoing mechanism for housekeeping dispute resolution.

The Court of Appeal notes that :

“The stipulation was for an assessment by Mefford to be performed on one occasion and nothing more than that was agreed to or contemplated. That Mefford unilaterally added to her report that her conclusion was subject to revision does not translate into an agreement by the parties that she was to resolve future disputes about home care. 

It is significant that the parties’ conduct after 2012 confirms that the stipulation regarding Mefford was not seen as a continuing agreement providing for Mefford’s services. “

As a result, the Court of Appeals notes that the proper procedure to appeal the 2015 UR denial was to appeal through the IMR process.

In so finding, the Court of Appeals distinguishes two cases.

The WCAB panel had relied upon Patterson v. The Oaks (2014) 79 CCC 910, but the Court of Appeal distinguished Patterson as follows:

“The appeals board’s reliance on Patterson v. The Oaks Farm (2014) 79 Cal.Comp.Cases 910, 917-919 (Patterson) is misplaced. The Patterson case held that when an employer acknowledged the reasonableness and necessity of medical services, the employer cannot unilaterally terminate those services, even if there is no renewed prescription. (Ibid.) Contrary to the appeals board’s finding that the employer in this case unilaterally ceased to provide previously agreed reasonable medical services, in 2014 Allied, through the UR process, authorized the requested home care and only denied the request for an intensification of home care in 2015. The latter decision was not challenged through the IMR process.

The Court of Appeal also distinguished Bertrand v. County of Orange, 2014 Cal. Wrk.Comp.P.D.LEXIS 342. In Bertrand the parties had agreed to use an AME to solve ongoing disputes, essentially waiving the statutory UR/IMR review process. There was no such agreement to waive UR/IMR on an ongoing basis in Allied Signal (Wiggs).

From the perspective of providing quality care and from a humanitarian viewpoint, agreeing to an RN assessment would be a reasonable process for the defendant to agree upon. Let’s hope that the Allied Signal (Wiggs) decision does not discourage defendants from agreeing to an assessment of the individual needs of truly disabled workers.

Unfortunately, the UR/IMR process can in many instances be a sort of cookie cutter process. The UR and IMR reviewer usually lacks information on the details of mobility issues facing the worker inside their house, difficulties handling some of the in-home ADLs, and other issues that pertain to obstacles in their individualized home environment.

Those are issues that can be examined by an RN under the sort of agreement fashioned to resolve the 2012 dispute. But here there was no agreement to use that mechanism on an ongoing basis.

Here is the Court of Appeals decision:


Stay tuned.

Julius Young