Young: Stevens Case Update
Thursday, August 10, 2017 | 1165 | 1 | min read
In late June the Workers' Compensation Appeals Board issued a clarifying decision in Frances Stevens V. Outspoken Enterprises (State Compensation Insurance Fund).
The decision reaffirms the WCAB’s determination that the 2009 Medical Treatment Utilization Schedule guideline on home health care, is void ab initio.
SCIF filed a writ petition on Aug. 1.
The 2009 MTUS section on home health care was very restrictive. Many severely disabled workers had their home health services challenged while this section was in force. I recall one family that almost went into bankruptcy having to pay for attendant care for a sibling whose home health aides had been yanked away by application of the MTUS section.
I settled the home health issue for over $1 million rather than face the uncertainty of MTUS denials and the looming financial ruin for the family that otherwise lacked resources to pay for someone to look after a worker who could not reliably ambulate and mange herself.
This is an issue that challenges our notions of fairness and compassion.
The 2009 MTUS section on home health care was later replaced, so to some extent Stevens now involves substantive issues less likely to arise. On the other hand, Stevens remains important for its example of the WCAB’s power over MTUS and independent medical review.
First, a recap. Stevens has been widely watched, since it was the vehicle for an attack on the constitutionality of IMR. But that constitutionality argument was rejected by the California Court of Appeal, 1st District. The constitutionality of IMR was also upheld in March 2017 by the 3rd District in Ramirez v. WCAB.
However, the 1st District opinion made it clear that the WCAB retained some power to review IMR determinations, stating that:
“The board’s authority to review an IMR determination includes the authority to determine whether it was adopted without authority or based on a plainly erroneous fact that is not a matter of expert opinion. (§ 4610.6, subd. (h)(1) & (5).) These grounds are considerable and include reviews of both factual and legal questions.”
So this is what the WCAB did in its May 2017 ruling, finding that the 2009 home health guideline was “contrary to California law, and the IMR determination that relied on it was therefore adopted without authority.”
In May 2017, the Stevens panel (Commissioners Sweeney, Zalewski and Deputy Commissioner Newman) concluded that:
“The medical evidence supporting Ms. Stevens' need for home health care appears to be compelling. Nevertheless, we are precluded from determining the medical necessity of a home health aide in this case. We observe that the case records contain extensive expert opinion regarding the medical necessity of home health care services to cure or relieve Frances Stevens from the effects of her industrial injury, which is evidence that may be considered in lieu of the invalid guideline applied here. (§ 4610.5, subd. (b)(2). In the proceedings below, the WCJ found that the 'Administrative director did not act without or in excess of her powers in the IMR determination dated Feb. 20, 2014' as a basis for denying applicant’s appeal. Because we now reach a contrary conclusion, we will rescind the WCJ’s findings and order denying applicant’s IMR appeal, and return this matter to the trial level for further proceedings in accordance with our decision. The WCJ may determine whether further hearing is necessary on issues not reached herein, and consider whether, given the passage of time, further development of the record may be necessary. In the event that the WCJ finds that the administrative director’s determination is reversed, the WCJ may determine what evidence, if any, should be provided to the new IMR reviewer when submitted for review pursuant to §4610.6(i).”
SCIF thereafter sought reconsideration, but its challenge has now been rejected.
The June 2017 Stevens panel makes it clear that the WCAB does have jurisdiction to determine the validity of administrative regulations. Moreover, regulations must meet a two-prong test: They must not be in conflict with the statutes and must be necessary to effectuate the purpose of the statute.
The WCAB panel found that the 2009 MTUS guideline was a Medicare payment standard and did not meet the criteria of the two-prong test. Home health care is a long-standing treatment modality recognized by both California case law and Labor Code 4600. The panel concludes that:
“The 2009 guideline is outside of the administrative director’s authority and, because it is not an evidence-based treatment guideline, it is unable to effectuate the purpose of section 5307.27. Accordingly, it is void ab initio.”
So the WCAB has remanded the matter to the workers’ compensation judge, who apparently could determine that another IMR review should be done.
The WCJ does not have the power to simply order the services. SCIF could just authorize the requested services. But SCIF had decided to file a writ petition. The end of this saga is not yet clear.
Click here for the June 30, 2017, opinion of the WCAB denying SCIF’s petition for reconsideration and denying SCIF’s petition for removal.
Julius Young is a claimants' attorney for the Boxer & Gerson law firm in Oakland. This column was reprinted with his permission from his blog, www.workerscompzone.com.