Conflicts in Representing a Guardian Ad Litem / Caregiver

Saturday, January 14, 2006 | 0

The following set of questions and answers recently appeared in our California Professional Forums. The editors felt this discussion was instructive and informative regarding WCAB procedure. The post has been edited slightly for readability, grammar and punctuation.

Q: Is there anything preventing my representing the Applicant/Guardian Ad Litem (for an already-stipped 100% psyche spouse) in her capacity as an in-home care giver (since she'd technically be considered a "medical-provider" in that capacity)? I've done it before (if anyone should get paid for in-home care services it seems like the guardian ad litem would be one of the more logical choices for the job), but the defense has questioned my representing "both an applicant and medical provider" in this case. Assuming it's ok, should I get any particular waivers, consents, etc. signed/filed?

A1: I suggest you write the defense, telling them you suggest they request a "Status Conference." Explain to them they can voice their concerns to the WCJ and that you feel their concerns are unreasonable and that you will, at the same time, present your bill for, e.g., 1 hour at your depo rate for dealing with their concerns, again for the WCJ to rule upon.

I see a very good chance their concerns will evaporate. The GAL is not a "medical provider" in the sense it is used in the Labor Code, but rather an "attendant." This is a reimbursable expense in some cases, but not all.

For a good spousal reimbursement case, see Elliott vs WCAB 15 CWCR 155, 52 CCC 247. I worked on this case. The claim was made after care had been rendered...100% PD case due to stroke and wife was trained by hospital at defendant's expense to care for her husband, but defendants did not feel obligated to pay her anything!

Her "duties" included feeding with spoon, etc., bathing, bed pan, urinal, etc. Claim settled for a substantial sum prior to a final decision while a writ was pending.

A2: If the in-home care giver is not being paid, you can file for an Expedited Hearing on behalf of the applicant re penalties & denial of treatment. This should accomplish getting the GAL Paid and possibly without the need for an appearance. However, I see a clear appearance of impropriety (especially in a 100% psyche case) representing the applicant and the GAL who is filing liens for in-home care.

In the instant matter, the IW already has a 100% psyche stip. Thus, this is clearly an accepted claim. As we all know, LC 3751(b) states, "a provider of medical services shall not, with actual knowledge that a claim is pending, collect money directly from the employee for services to cure or relieve the effects of the injury for which the claim form was filed." Additionally, per LC 3751(b), "Any medical provider who violates this subdivision shall be liable for three times the amount unlawfully collected, plus reasonable attorney's fees and costs."

Let's take a look at the following hypothetical examples to determine if there is a conflict-of-interest.

What if the spouse/GAL was a a DME manufacturer who dispensed DME equipment at the request of the PTP rather than an in-home care provider? Heck, let's take it a step further, and say the spouse/GAL was the PTP.

In the above hypothetical, the GAL/DME manufacturer, or the GAL/PTP, is clearly required to submit the billing to the IC/TPA/PSI. If the treatment is reasonable, the IC/TPA/PSI is required to reimburse. If there is a dispute regarding the necessity of the treatment, or the reasonableness of the charges, the WCAB has exclusive jurisdiction with subject matter jurisdiction, to resolve the dispute.

If the WCAB resolves the dispute in favor of the GAL/DME manufacturer or GAL/PTP, the IC/TPA/PSI pays the GAL/DME manufacturer or GAL/PTP for the reasonable services furnished for the benefit of the IW.

If the WCAB determines the services were not reasonable, the GAL/DME provider or GAL/PTP is SOL (not statute of limitations) and is legally prohibited (See LC 3751(b).) from seeking reimbursement from the IW.

Where is the conflict-of-interest in the attorney representing the GAL/spouse? If the IC/TPA/PSI objects to the "in-home care giver" services furnished by the GAL/spouse, the dispute is resolved by the WCAB. If found reasonable per ACOEM, the GAL is awarded reasonable costs. If the services are found to not be reasonable, the GAL cannot charge the spouse.

Although there is a paucity of case law addressing a 'conflict-of-interest' in this type of situation found in the CCCs or the CWCR (with the exception of the Lamin case), the Probate Code is of assistance. You might want to review Division 3, Part 1, Chapter 1, Section 1003(6)(c) in particular: "The reasonable expenses of the guardian ad litem, including compensation and attorney's fees, shall be determined by the court and paid as the court orders, either out of the property of the estate involved or by the petitioner or from such other source as the court orders."

Being as LC 3751(b) prohibits the provider from collecting for services directly from the IW, the GAL/DME provider or GAL/PTP has no choice but to seek reimbursement directly from the IC/TPA/PSI. I see no conflict-of-interest for GP.

In Lamin v. City of LA, 69 CCC 1002, the court addressed a situation where a NCM was appointed as GAL. The WCAB reversed the appointment of the NCM as GAL, but not on the basis of a conflict-of-interest. Instead, the WCAB found "no medical evidence had been received on question of applicant's incompetency, so that there was no legally valid evidence to establish that applicant was "incompetent."" Additionally, and not surprisingly, the issue of whether a NCM is reasonably required per ACOEM was raised.

As an aside, GP should review Lamin as well as Herbinger v. LA Times, 70 CCC 504, in order to perfect a proper argument that encompasses ACOEM and other EBM in support of the need for an "in-home care giver." ACOEM is certainly a less than perfect guideline for a "100% psyche" stipped case --- as this IW will never RTW.

A2: You just quoted my most favorite labor code! I was thinking the same thing. I have had several cases with the same circumstances. I can't quote case law, but I will tell everyone interested that when it came down to reimbursing a spouse/relative for care giving--I was all for it. When my client/ER objected, I explained my rationale as follows:

1) It is usually in the best interest of an I/W, especially 100% PTD, to be in the care of a loved one.
2) The cost is far less, because in essence, they provide care 24-7.
3) I quote the cost of a Board and Care facility, on top of the medications, therapy and routine doctor visits. Not cheap to say the least! And let's not forget "door-to-door" transportation by a medical transport co. Costs average $200.00 on a good day with the "van" fully loaded, if not more.
4) What if the tables were turned and "they" were taking care of a spouse? Not much outside life for the caretaker.

Some of the responses I would get were the costs would be a lot cheaper if the I/W would just die. How inhumane is that?

I don't see any conflict of interest here. No 4906g issues either. AND for the record, In home care providers are NOT "medical providers," unless they have medical certification AND, there is an rx from a physician!

I would spend some quality time researching the costs of outside transportation, in home health care providers and at least 5 critical care facilities where the claimant could hypothetically reside. When all is said and done and you have built your "defense," I would be very surprised if the defendants wouldn't be agreeable to some sort of "compromise." As a matter of fact, since they are disagreeing with you over a legal technicality, consult with an attorney that specializes in this sort of situation and document their hourly rate.

The "key" here is that the spouse is not necessarily a "medical provider," by definition.

One last point: This case must have either been negotiated or Awarded by a WCJ. Which is it??? Because if the I/W prevailed upon a QME, ACOEM is out of the picture. How on earth, in the name of God, does anyone rationalize using ACOEM for someone whom is 100% disabled and can't take care of themselves, aka the activities of daily living? Does a Nurse's Aide in Arkansas make this decision?

Q2: Not sure if this is relevant but the AME and treater have both opined (since the 100% stips) that applicant would have needed to be institutionalized but for the GAL's daily and constant assistance at home re feeding, bathroom, meds, etc. etc., so there's no question that GAL was acting way beyond a typical GAL who simply takes charge of the litigation on behalf of an applicant (plus we have nurse case manager-type expert report evaluating GAL's in-home care-giving services as similar to those of a standard, fulltime, non-nurse caregiver).

[And re question posed immediately above, case was stipped on day of trial after AME reported 100% with no apportionment (P&S prior to 4/04) and the WCJ persuaded defense (while issues were being framed at trial) that it was senseless to try the case with such unrebutted evidence.]

So evidence of caregiver's value isn't really much of an issue. More importantly is whether there's any problem with same applicant attorney representing the GAL as the GAL throughout the case, and then making claim for same GAL but as care-giver entitled to past and future compensation (and whether any special paperwork might be necessary.)

A3: Being as the GAL/spouse is standing in the IW's shoes, you are representing the GAL/spouse, and the actual IW is incompetent, who would be competent to sign off on any "waivers, consents, etc.?" The answer, of course, would be the GAL you are representing in a dual capacity.

Is this situation any different than if the GAL hired a in-home caregiver, paid the in-home caregiver out-of-pocket, then filed a lien for reimbursement of self-procured care?

In my ever so humble and lay opinion, it does not matter if the GAL provided the services and submitted a lien/billing for reimbursement, or if the GAL hired the GAL's sister to provide the in-home caregiver services.

I still see no conflict. But, I do see the DA attempting to eliminate your AA fees in representing the GAL in this dual capacity. Remember, a lien claimant is not entitled to attorney fees in collecting on a lien. But, in representing the GAL, even in this dual capacity, you should be able to obtain fees.

In my view, the DA questioning your representation of the GAL as a lien claimant is not really about a conflict-of-interest --- but instead, it is about the financial exposure for the DAs client.

As I am not an attorney, I am certainly not an expert. However, without exposing too much of my personal life, I have had to act in the capacity of a GAL, as well as a conservator, on several occasions. While acting as the GAL and/or conservator, I expended personal funds for the benefit of the ward/conservatee. The probate judge had no problem issuing an order for me to be reimbursed from the estate of the ward/conservatee.

Although my personal experiences are distinct from the situation you are facing, due to the fact you are involved in a comp proceeding, I simply see no conflict-of-interest in you representing the GAL as a lien claimant.

If you really want an expert opinion, seek one from proficient probate counsel --- on letterhead, and make sure the probate attorney has legal-malpractice coverage. This is one way to CYA. In the alternative, seek advice from your legal malpractice carrier.

Let's get down to basics. For legal purposes, the GAL is the IW. If the GAL/IW is called to testify about the reasonable need for an "in-home care giver," the GAL/IW is testifying as the IW. Obviously, the applicant, who already has a 100% psyche stip, is incompetent to testify. The spouse was appointed as GAL because the applicant is incompetent.

If the GAL perjures himself/herself while testifying at a lien trial, then it is the GAL who will suffer the penalty, not the applicant, nor the AA.

Remember, due to the fact this is an admitted injury, if the GAL/IW loses at the lien trial, LC 3751(b) prohibits the GAL/IW from seeking reimbursement from himself/herself.

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