LIONS RAISINS

Lately there has been intense interest in how California’s workers’ comp system is dealing with cases of severely disabled workers.

Lions Raisins v. WCAB (Miramontes) could turn out to be important on that issue. More on that case in a moment, but first a little perspective on recent developments.

Today ProPublica and NPR released yet another installment in their series on the devolution of workers’ comp. That piece (see link below) mentions both the Mercado case and Frances Stevens v. Outspoken Enterprises, which is pending at the California Court of Appeal, First District. I’ve discussed these cases in recent blog posts.

The publicity has touched a nerve with the Brown Administration. Another Pro Publica/NPR post quoted a DWC notice and Dr. Rupa Das of the DWC in this fashion:

“In the notice issued Thursday, the Department of Industrial Relations and its Division of Workers’ Compensation said “agreed-upon medical treatment must be honored.”

“Under the 2012 reforms,” the notice said, such care can’t be modified “unless a treating physician provides medical evidence of a change in the injured workers’ condition.”

This would seem to be a DWC statement endorsing the WCAB’s significant panel decision in Patterson V. The Oaks Farm. Patterson dealt with issues concerning a nurse case manager. The full scope of the Patterson doctrine is still unclear and untested, as it is still not even an en banc decision of the board.

Several cases have held that Patterson does not apply to medications.

On the other hand, in the Joel Ramirez v. Kuehne and Nagel case, the Patterson doctrine was applied in a case where Travelers Insurance cut off a severely disabled workers’s 24 hour health care assistance and non-medical transportation that had previously been agreed upon.

Similarly, in Jimenez v. American Wrecking (where there had been a stipulated award to pay for home health care until receipt of a QME or AME report), the panel relied on Patterson for the concept “An employer may not unilaterally terminate medical treatment that was earlier authorized as reasonably required to cure or relieve the injured worker from the effects of the industrial injury unless that termination is supported by substantial medical evidence.

Patterson did not actually involve an award of a nurse case manager as part of a judicial finding but rather, after on and off provision of a nurse case manager, an agreement by defendant to consider further use of a nurse case manager. So it is a bit unclear in some cases what constitutes “agreed upon” treatment so as to trigger the concept that such care can’t be modified absent a showing of change in circumstances.

But as regards home health assistance for severely disabled workers, ProPublic/NPR said this:

“Rupali Das, the division’s medical director, previously said in an interview that the state is planning to update the home health guideline after determining that it was too narrow and “does not meet what we want to have in California.”

The DWC is considering methods to compensate home health care providers, but there was no known indication that the DWC was planning to make these adjustments to home health guidelines until the ProPublic/NPR coverage.

Perhaps the DWC is being shamed into action.

Any discussion of these issues would be incomplete without a mention of Miramontes V. Lions Raisins, case which is currently at the California Court of Appeals First District. Lion Raisins, employer of Mr. Miramontes, has filed a Petition for Writ of Review. At the bottom of this post I’ve attached a copy of the WCAB panel decision in Miramontes as well as the Petition for Writ.

First, a quick review of the facts in Miramontes v. Lions Raisins. After a 2006 injury at Lion (Lion, based in Selma, California, claims to be the world’s largest producer of raisins; somehow Lion became Lions in WCAB pleadings), Mr. Miramontes was found 100% disabled. Future medical was awarded and 8 hours per day home health assistance had been provided subsequent to the award, though the award apparently did not specify home health assistance. Two years after the finding of 100% disability and some six years after a previous treating doctor had justified home health assistance, the adjuster requested a report from the new treating doctor addressing the home care needs.

After months of not receiving such requested letter, the adjuster sent a letter to applicant counsel indicating that if the doctor did not respond then the insurer would terminate all home health care. The following month the adjuster sent a letter saying they were terminating home care because of lack of reponse. The doctor then did comply, sending an RFA prescribing full time home health assistance.

Upon receiving that, the adjuster sent the request through utilization review, which denied all home health assistance.

The workers’ comp judge described Mr. Miramontes as “a paraplegic who cannot even get himself in and out of bed, or in and out of a chair by himself, or in and out of a wheelchair by himself”.

At a trial the workers’ comp judge ordered continuation of 8 hours per day home health assistance for Mr. Miramontes, stating that:

“With regard to the Utilization Review, this judge believes that defendant’s unilateral stoppage of medical treatment to force a new prescription for any medical service that an injured worker has needed for seven years is disingenuous and should not be allowed by the Workers’ Compensation Appeals Board. Defendants forced the treater to provide a prescription so they could do Utilization Review by unilaterally stopping medical treatment in the form of home healthcare. They have presented no evidence that applicant’s condition had changed anytime between October 2013 and February or March 2014 when defendants stopped providing home healthcare. Again, it is common sense that a paraplegic without use or feeling below the waist, that needs catheterization, is not going to need some form of home healthcare.”

The judge concluded that “This Judge believes the Workers’ Compensation Appeals Board can’t countenance the failure to provide medical treatment like this or it will put injured workers’ lives in danger.”

Patterson v. The Oaks Farm was not cited by the workers’ comp trial judge in Miramontes v. Lions Raisins or by the WCAB panel that upheld the home healthcare award to Mr. Miramontes. Home health services had been provided for years but not on any formally awarded or agreed basis. But in essence, Lion challenges the broader interpretation of the Patterson doctrine.

In its Petition for Writ, among various arguments advanced (see the link to the actual full petition below), Lion Raisins contends that under Dubon II and Labor Code 4610, the WCAB lacked authority to award medical treatment absent a timeliness defect in UR.

Lion is arguing that the UR process is mandatory and must control. Under that argument, Miramontes would have been forced to appeal to IMR.

Lion also makes a substantial evidence argument. It argues that “As noted by Dr. Enid Hoenig in his utilization review determination of April 1, 2015 home healthcare services are “recommended only for otherwise recommended medical treatment for patients who are homebound, on a part time or “intermittent” basis, generally up to no more than 35 hours per week. Medical treatment does not include homemaker services like shopping, cleaning, and laundry, and personal care given by home health aides like bathing, dressing and using the bathroom when the is the only care needed. (CMS, 2004). Judge Hurley cites no other medical treatment guidelines or evidence-based standards in arriving at his determination to award applicant eight hours per day seven days per week of home healthcare assistance.”

Lion Raisins states that “Absent at least a reference to the medical treatment guidelines in consideration of the definition of medical treatment under the MTUS the decision of the trial judge to award medical care without reference to evidence-based medical treatment guidelines is simply not supported by substantial evidence.”

It will be interesting to see if the California Court of Appeal First District decides to take this case. Pending at the same court is Stevens v. Outspoken Enterprises, dealing with the constitutionality of the IMR system.

Given the apparent similar physical predicament of Mr. Miramontes to that of Mr. Nicolas Mercado, Ms. Frances Stevens, and Mr. Joel Ramirez, it will not be a surprise if this case gets attention from ProPublica/NPR and David Lanier and Christine Baker at the DWC.

How does the DWC envision such cases are to be handled? What sort of adjustments are being entertained by Dr. Das and the powers that be? Does the DWC intend that the admonitions to insurers in its March 19, 2015 newsline apply to Mr. Miramontes’ case? If so, would the DWC be filing a brief in support of the Mr. Miramontes and the WCAB panel decision?

Interesting questions for thought……

Here is the ProPublica/NPR article titled “The Fallout of Workers’ Comp Reforms: 5 Tales of Harm”:

https://www.propublica.org/article/workers-compensation-injured-workers-share-stories-of-harm

Here is the WCAB panel decision in Miramontes v. Lions Raisins:

WorkersCompHomeHealthCareIsraelMiramontesVs.Lions(2015)

Here is the Petition for Writ of Review in Miramontes v. Lions Raisins:

Petitoin for Writ of Review – Miramontes