Jennifer Patterson v. The Oaks Farm; California Insurance Guarantee Association for California Compensation Insurance Company, in liquidation

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1 WORKERS’ COMPENSATION APPEALS BOARD 2 STATE OF CALIFORNIA 3 4 JENNIFER PATTERSON, 5 Applicant, 6 vs. Case No. ADJ3905924 (ANA 0339374) (Oxnard District Office) 7 8 OPINION AND DECISION AFTER RECONSIDERATION (Significant Panel Decision) THE OAKS FARM; CALIFORNIA INSURANCE GUARANTEE ASSOCIATION for CALIFORNIA COMPENSATION INSURANCE COMPANY, in liquidation, 9 Defendants. 10 11 We previously granted defendant’s petition for reconsideration of the March 6, 2014 Findings 12 And Order of the workers’ compensation administrative law judge (WCJ) as served on March 10, 2014. 13 In that decision, the WCJ found that applicant requires the services of a nurse case manager, that the 14 issue was appropriate for determination at an expedited hearing, and that applicant is not required to 15 secure a Request For Authorization (RFA) from her primary treating physician to be sent to utilization 16 review and then Independent Medical Review in order to obtain the nurse case manager services already 17 found necessary by the Agreed Medical Evaluator (AME). Based upon those findings, the WCJ ordered 18 defendant “to reinstate services of a nurse case manager,” that were authorized by defendant before it 19 unilaterally terminated them in December 2013. 20 Defendant contends that the WCJ’s decision is not supported by substantial medical evidence, 21 that applicant did not meet her burden of proving a need for nurse case manager services, and that 22 applicant was required to submit an RFA in order to support a request for nurse case manager services. 23 24 An Answer was received from applicant. The WCJ provided a Report and Recommendation on Petition for Reconsideration (Report) recommending that reconsideration be denied. 25 We affirm the March 6, 2014 decision of the WCJ, and hold as follows: 26 1. The provision of a nurse case manager is a form of medical treatment under Labor Code 27 section 4600; 1 2. An employer may not unilaterally cease to provide approved nurse case manager services 2 when there is no evidence of a change in the employee’s circumstances or condition showing that the 3 services are no longer reasonably required to cure or relieve the injured worker from the effects of the 4 industrial injury; 5 6 3. Use of an expedited hearing to address the medical treatment issue in this case is expressly authorized by Labor Code section 5502(b)(1); 7 8 4. It is not necessary for an injured worker to obtain a Request For Authorization to challenge the unilateral termination of the services of a nurse case manager. 1 9 BACKGROUND 10 Applicant admittedly sustained serious industrial injury to her head, neck, lumbar spine, psyche, 11 and in the form of headaches on May 6, 1999, when the horse she was training tripped, throwing her to 12 the ground before falling on her and pinning her against a fence. Following the injury, applicant moved 13 from California to Texas to live near her parents. Her back injury was treated by surgery in 2008, but she 14 continues to experience symptoms of pain along with headaches and neck pain. The pain and headaches 15 are treated with numerous medications, and applicant utilizes the services of more than one physician. 16 Nurse case manager services were authorized and provided by defendant, but were later unilaterally 17 terminated by defendant. 18 In April 2012, applicant filed a Declaration of Readiness to Proceed (DOR) to expedited hearing 19 on the question of her entitlement to medical treatment pursuant to Labor Code section 4600, averring in 20 pertinent part that defendant “failed to provide a nurse case manager…per AME [Randolph] Noble 21 22 23 24 25 26 27 1 The Appeals Board has designated this as a significant panel decision. Significant panel decisions are not binding precedent in workers’ compensation proceedings; however, they are intended to augment the body of binding appellate court and en banc decisions and, therefore, a panel decision is not deemed “significant” unless, among other things: (1) it involves an issue of general interest to the workers’ compensation community, especially a new or recurring issue about which there is little or no published case law; and (2) all Appeals Board members have reviewed the decision and agree that it is significant. (See Elliott v. Workers’ Comp. Appeals Bd. (2010) 182 Cal.App.4th 355, 361, fn. 3 [75 Cal.Comp.Cases 81]; Larch v. Workers’ Comp. Appeals Bd. (1999) 64 Cal.Comp.Cases 1098, 1099-1100 (writ den.); 25 Cal. Workers’ Comp. Rptr. 197 [News Brief, August 1997].) PATTERSON, Jennifer 2 1 [M.D.]’s November 10, 2011 report despite numerous emails and phone contact…” 2 2 attorney filed an objection to applicant’s request for expedited hearing. The objection was not made on 3 the grounds that the provision of nurse case manager services was no longer reasonably required to cure 4 or relieve applicant from the effects of her industrial injury. Instead, defendant asserted as follows with 5 respect to the use of the nurse case manager: 6 Defendant’s “Defendant was the party that originally recommended the use of a nurse case manager to help assist with this matter. A case manager has been utilized in the recent past, however, disputes frequently arise between applicant and various assistants, including nurse case manager(s). At this time it is my understanding that a nurse case manager is currently involved with this matter although things frequently change so far as nurse case managers participation is concerned, again, primarily to the fact that applicant is difficult to deal with.” (Emphasis added.) 7 8 9 10 11 12 In July 2012, applicant’s counsel again filed a DOR on various treatment issues, declaring in pertinent part as follows: “Defendants have failed to provide a nurse case manager.” 13 The Minutes from a conference on December 11, 2012, reflect that most of the issues in dispute at 14 that time were “resolved by agreement,” and that defendant agreed to reconsider the use of the services 15 of a nurse case manager. 16 Another DOR concerning various treatment issues was subsequently filed by applicant in 17 December 2012. Applicant’s attorney noted in his declaration in that document that, “Defendants have 18 yet to assign a nurse case [manager] to assist with this very complicated case.” 19 In December 2013, applicant again filed a DOR, which described the issue of concern, in full, as 20 follows: “Defendants unilaterally terminated services of agreed Nurse Case Manager recommended by 21 the AME. Various treatment referrals have been halted. Phone calls and emials [sic] have not resulted in 22 resolution.” According to the Minutes from January 8, 2014, the parties agreed at that time that the case 23 could go off calendar, but that applicant could file again for an expedited hearing. 24 / / / 25 26 27 2 Quotations converted from upper case where appropriate. Applicant also asserted in the DOR that defendant failed to provide “transportation” as part of her medical treatment. We express no opinion herein on that issue. PATTERSON, Jennifer 3 1 It appears that a DOR was filed the next day by applicant, identifying the same issue concerning 2 the nurse case manager in the same way as expressed in the DOR filed in December 2013, as quoted 3 above. An expedited hearing was thereafter conducted by the WCJ on January 28, 2014. 4 5 The issues addressed at the January 28, 2014 expedited hearing are identified in the Minutes of Hearing as follows: 6 “1. Whether there was good cause to discontinue the services of a nurse case manager by defendant. 7 8 2. Whether there is good cause to order reinstatement of nurse case management services as requested by applicant. 9 3. Whether reinstatement of a nurse case manager requires a request for authorization for treatment. 10 4. Whether nurse case management services qualify as treatment for purposes of an expedited hearing under Labor Code Section 4600.” 11 12 According to the January 28, 2014 Minutes of Hearing, defendant stipulated that it had assigned a 13 nurse case manager, but thereafter “discontinued” the services. In addition to the parties’ stipulations, 14 the WCJ received into evidence five reports by Dr. Noble and the transcript of his July 16, 2012 15 deposition as Board Exhibits AA through FF. 3 Following the hearing the WCJ issued his March 6, 2014 16 decision as described above. 17 In the Report the WCJ explains his decision and responds to defendant’s contentions as follows: 18 “The undersigned found that since the initiation of NCM [nurse case manager] services there was no evidence of improvement in applicant’s condition warranting discontinuation or warranting denial of reinstatement. The undersigned further found that no RFA was required for a form of treatment already in progress and then denied without any demonstration of a change in circumstances. Last, the undersigned found that NCM services are part of [medical] treatment for purposes of determination at expedited hearing… 19 20 21 22 “[Defendant’s] characterization of the AME opinion as insubstantial is based on the single exchange on the subject at deposition. However Dr. Noble’s initial evaluation recounted the incident when applicant was thrown from a horse, lost consciousness, awoke to the sight of the horse’s hoof next to her face as the horse lay on top of her. He described the 23 24 25 3 26 27 Applicant notes in her Answer that Dr. Noble’s November 10, 2011 report was received as Exhibit FF, but the exhibit is incorrectly described in the Minutes of Hearing as an April 5, 2012 report. In addition, applicant advises that the transcript of Dr. Noble’s July 16, 2012 deposition that was received at hearing as Exhibit CC is also mislabeled in the Minutes of Hearing as an October 17, 2012 report. PATTERSON, Jennifer 4 1 2 3 4 5 resultant labryrinthitis/vestibular dysfunction, post traumatic head syndrome, cervical and lumbar injuries and occipital neuralgia. He took a history of spinal fusion surgery, gastric bypass caused by weight gain as a result of medications, and psychological symptoms along with difficulties with activities of daily living with twelve daily medications. He issued six diagnostic impressions including cognitive disorder due to medication and possibly due to brain injury. He noted that applicant cannot drive a vehicle and requires home health aide since she cannot use a stove or sharp utensils. Turning to NCM services, the doctor stated on initial evaluation of 11/10/2011: 6 7 8 9 10 11 12 [‘]Is it reasonable to have a Nurse Case Manager assist with coordinating medical needs?: It would be reasonable currently to have a Nurse Case Manager assist with coordinating Ms. Patterson’s medical needs due to the effects of Polypharmacy on her cognitive and psyche functioning. It is noted that she has missed telephonic appointments with Dr. Bergenstal and also she has difficulty when traveling to her appointments in California. However, Ms. Patterson’s need for a Nurse Case Manager may change and should be reassessed after she has completed the recommended inpatient detox and pain management programs.[’] (WCAB Exhibit FF, p. 18.) 13 14 15 16 17 18 19 20 21 22 “Petitioner did not produce evidence of completion of inpatient detox and pain management programs or of other improvement warranting the discharge of the nurse case manager. In fact, on 06/03/2013 Dr. Noble documented that those protocols were not completed: [‘]In response to Ms. Graham’s question as regards whether treatment rendered by Dr. Bergenstal between 09/30/10 to 03/03/11 was ‘reasonable and necessary,’ it was and it should be certified for payment. As noted, I had determined that Ms. Patterson continued to be in need of psychological intervention at the time of my initial evaluation. That Dr. Bergenstal’s Progress Reports may not be as thorough as Dr. Glassman desires, the fact is that he was rendering treatment that was medically indicated. I continue to look forward to reevaluating Ms. Patterson when she has had the opportunity to complete the inpatient and outpatient detoxification programs that I previously recommended and reiterated during my deposition testimony.[’] (WCAB Exhibit DD, p. 3.) 23 24 25 26 27 “The burden of proof for the need for the NCM services is adequately met by the AME, whose opinion on the issue is much more extensive than petitioner describes it. Moreover, there is nothing in evidence contrary to that opinion. “Turning to the propriety of ruling on NCM services at expedited hearing, the delivery of ‘treatment’ is as necessary to the process of curing or relieving from the effects of the industrial injury as is the medical service that is required. Transportation/mileage issues are determined at expedited PATTERSON, Jennifer 5 1 hearing though no doctor drives the patient to the point of care. A nurse case manager, as a medical professional, is actually providing ‘treatment.’ Even if not so regarded, the need for an NCM for the purpose of carrying out medical care is part of the delivery of ‘treatment’ as a workers’ compensation benefit. 2 3 4 “Last, there is no reasonable requirement for a Request For Authorization form for treatment that is in progress. Had the NCM services been stopped for a legitimate reason based on a medical opinion, and if a new need for the NCM developed, an RFA might be appropriate. Such is not the case here. The nurse case manager was necessary when provided and remained necessary throughout the course of treatment to the present time. 5 6 7 “Applicant was not required to secure an RFA from a PTP to be sent to UR [utilization review] and then IMR in order to obtain the NCM services already found necessary by the AME.” (Emphasis in original.) 8 9 10 DISCUSSION 11 1. The Provision Of A Nurse Case Manager Is A Form Of Medical Treatment Under Labor Code Section 4600. 12 13 Defendant recognized the need for a nurse case manager as reasonable medical treatment when it 14 authorized the provision of those services, as acknowledged in the declaration filed in opposition to 15 applicant’s April 2012 DOR. The use of those services in this case is consistent with the definition of 16 “Case Management” adopted by the nurse case manager accrediting organization American Case 17 Management Association, as follows: “Case Management in Hospital/Health Care Systems is a collaborative practice model including patients, nurses, social workers, physicians, other practitioners, caregivers and the community. The Case Management process encompasses communication and facilitates care along a continuum through effective resource coordination. The goals of Case Management include the achievement of optimal health, access to care and appropriate utilization of resources, balanced with the patient’s right to self determination.” 4 18 19 20 21 22 23 A nurse case manager has a singular role in a workers’ compensation case. “He or she must 24 interact and coordinate with the injured employee, the employee’s physician(s), the claims adjuster(s), 25 26 27 4 Judicial notice is taken of this definition pursuant to Evidence Code section 452(h) as set forth on the following ACMA web site as of June 23, 2014: http://www.acmaweb.org/section.aspx?sID=4 PATTERSON, Jennifer 6 1 the attorney(s), and/or others, who are all parties to the employee’s need for medical care.” (Lamin v. 2 City of Los Angeles (2004) 69 Cal.Comp.Cases 102 (Appeals Board panel decision) (Lamin).) 3 4 We agree with the WCJ that the provision of nurse case manager services is a form of medical treatment described in Labor Code section 4600(a) 5, which provides as follows: 5 “Medical, surgical, chiropractic, acupuncture, and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches, and apparatuses, including orthotic and prosthetic devices and services, that is reasonably required to cure or relieve the injured worker from the effects of his or her injury shall be provided by the employer. In the case of his or her neglect or refusal reasonably to do so, the employer is liable for the reasonable expense incurred by or on behalf of the employee in providing treatment.” (Emphasis added.) 6 7 8 9 10 The coverage of section 4600 extends to any medically related services that are reasonably 11 required to cure or relieve the effects of the industrial injury, even if those services are not specifically 12 enumerated in that section. (Smyers v. Workers’ Comp. Appeals Bd. (1984) 157 Cal.App.3d 36, 41 [49 13 Cal.Comp.Cases 454].) The description of required medical treatment in section 4600 expressly includes 14 “nursing” services, which encompasses the services of a nurse case manager, as well as practical nursing 15 services performed by unlicensed persons. (Lamin, supra; Castorena v. Liberty Mutual Insurance Co. 16 (2004) 32 Cal. Workers’ Comp. Rptr. 74 (Appeals Board panel decision); Henson v. Workmen’s Comp. 17 Appeals Bd. (1972) 27 Cal.App.3d 452, 458 [37 Cal.Comp.Cases 564]; Pacific Electric Ry. Co. v. 18 Industrial Acc. Com. (Patterson) (1950) 96 Cal.App.2d 651 [15 Cal.Comp.Cases 88]; Cal. Casualty 19 Indemnity Exchange v. Industrial Acc. Com. (Elliston) (1948) 84 Cal.App.2d 417 [13 Cal.Comp.Cases 20 50]; Martinez v. Workers’ Comp. Appeals Bd. (1999) 64 Cal.Comp.Cases 1176 (writ den.).) 21 In this case, defendant acknowledged that the services of a nurse case manager are reasonably 22 required to cure or relieve applicant from the effects of her injury as described in section 4600 when it 23 authorized the provision of those services. 24 / / / 25 / / / 26 27 5 Further statutory references are to the Labor Code. PATTERSON, Jennifer 7 1 2 3 2. An Employer May Not Unilaterally Cease To Provide Approved Nurse Case Manager Services When There Is No Evidence Of A Change In The Employee’s Circumstances Or Condition Showing That The Services Are No Longer Reasonably Required To Cure Or Relieve The Injured Worker From The Effects Of The Industrial Injury. 4 Defendant admits that it authorized the nurse case manager services as part of applicant’s medical 5 treatment, but now contends that the provision of such services is not supported by substantial medical 6 evidence. However, defendant did not initially claim that it stopped providing nurse case manager 7 services because they are no longer reasonably required to cure or relieve applicant from the effects of 8 her industrial injury. Instead, defendant’s attorney wrote in the objection to applicant’s April 2012 DOR 9 that, “things frequently change so far as nurse case managers participation is concerned, again, 10 primarily to the fact that applicant is difficult to deal with.” (Emphasis added.) 11 Unilaterally terminating medical treatment that was earlier authorized as reasonably required to 12 cure or relieve the injured worker from the effects of the industrial injury is contrary to section 4600(a) 13 unless supported by substantial medical evidence. Characterizing a patient as “difficult to deal with” is 14 not a substitute for such medical evidence. A patient may be “difficult” to deal with, particularly because 15 of the effects of an injury, but that is not relevant to the question of whether the medical treatment at 16 issue is reasonably required to cure or relieve the effects of the industrial injury. Allowing a defendant to 17 unilaterally cease reasonable medical treatment based only upon its subjective perception that the injured 18 worker is a “difficult” person is inconsistent with the use of objective, evidence based standards to 19 evaluate whether medical treatment is reasonably required to cure or relieve the effects of the industrial 20 injury, as now provided in the workers’ compensation statutes. (See Lab. Code, §§ 4600(b), 5307.27.) 21 Defendant also misconstrues applicant’s burden in arguing that she was obligated to prove a need 22 for nurse case manager services at the January 28, 2014 expedited hearing. To the contrary, the first 23 issue identified in the Minutes of Hearing was “Whether there was good cause to discontinue the services 24 of a nurse case manager by defendant.” This was properly identified as the first issue that needed to be 25 addressed because when defendant initially provided nurse case manager services it effectively 26 acknowledged that the services were reasonably required to cure or relieve the effects of the industrial 27 injury in this case. Thus, the second issue listed in the Minutes of Hearing was not reached, and PATTERSON, Jennifer 8 1 applicant had no obligation to prove that nurse case manager services should continue. Instead, it was 2 defendant’s obligation to prove that nurse case manager services are no longer reasonably required. As 3 discussed below, defendant was required to meet that burden through the presentation of substantial 4 medical evidence. However, defendant did not do that at the January 28, 2014 expedited hearing. 5 3. Use Of An Expedited Hearing To Address The Medical Treatment Issue In This Case Is Expressly Authorized By Labor Code Section 5502(b)(1). 6 Section 5502(b)(1) provides as follows: 7 “The administrative director shall establish a priority calendar for issues requiring an expedited hearing and decision. A hearing shall be held and a determination as to the rights of the parties shall be made and filed within 30 days after the declaration of readiness to proceed is filed if the issues in dispute are any of the following… 8 9 10 (1) The employee’s entitlement to medical treatment pursuant to Section 4600, except for treatment issues determined pursuant to Sections 4610 and 4610.5.” (Emphasis added.) 6 11 12 13 As discussed above, the provision of nurse case manager services may be part of an employer’s 14 medical treatment obligation under section 4600. Thus, it was proper for the WCJ to address defendant’s 15 unilateral termination of nurse case manager services at the January 28, 2014 expedited hearing. 16 4. It Is Not Necessary For An Injured Worker To Obtain A Request For Authorization To Challenge The Unilateral Termination Of The Services Of A Nurse Case Manager. 17 18 Defendant acknowledged the reasonableness and necessity of nurse case manager service when it 19 first authorized them, and applicant does not have the burden of proving their ongoing reasonableness 20 and necessity. Rather, it is defendant’s burden to show that the continued provision of the services is no 21 longer reasonably required because of a change in applicant’s condition or circumstances. Defendant 22 cannot shift its burden onto applicant by requiring a new Request for Authorization and starting the 23 process over again. 24 25 Moreover, all the evidence received by the WCJ at the January 28, 2014 expedited hearing supports the continued provision of nurse case manager services. 26 27 6 Sections 4610 and 4610.5 do not apply to this dispute. PATTERSON, Jennifer 9 1 The portion of WCJ’s Report quoted above includes an excerpt from the November 10, 2011 2 report (Exhibit FF) of Dr. Noble, who described the provision of nurse case manager services as 3 reasonable, “due to the effects of Polypharmacy on [applicant’s] cognitive and psyche functioning.” Dr. 4 Noble further wrote that the need for nurse case manager services “may change” and should be 5 “reassessed after she has completed the recommended inpatient detox and pain management programs.” 6 However, there is no evidence in the record that applicant ever completed the programs recommended by 7 Dr. Noble, and there is no evidence of any medical reassessment by defendant of the need for nurse case 8 manager services as described by Dr. Noble. As recently as his July 16, 2012 deposition (Exhibit CC), 9 Dr. Noble was asked if he agreed that the parties “should try to get a nurse case manager?” He answered 10 “Yes.” (29:3-4.) 11 By contrast, defendant presented no evidence showing that there has been a change in applicant’s 12 condition or circumstances that contravenes its earlier determination to authorize nurse case manager 13 services. Nor did defendant present any medical opinion or evidence showing that the continued use of a 14 nurse case manager is not reasonable medical treatment in this case. 15 Applicant has no obligation to continually show that the use of a nurse case manager is 16 reasonable medical treatment. 17 reasonable medical treatment, it became obligated to continue to provide those services until they are no 18 longer reasonably required under section 4600 to cure or relieve the effects of the industrial injury. Like 19 all medical treatment decisions, that determination must be based upon substantial medical evidence. 20 (Lamb v. Workers’ Comp. Appeals Bd. (1974) 11 Cal.3d 274 [39 Cal.Comp.Cases 310]; LeVesque v. 21 Workmens’ Comp. Appeals Bd. (1970) 1 Cal.3d 627 [35 Cal.Comp.Cases 16].) Instead, once defendant authorized nurse case manager services as 22 Defendant failed to meet its burden of showing by substantial evidence that applicant’s condition 23 and circumstances changed in a way that made the further provision of nurse case manager services no 24 longer reasonable medical treatment in this case. 25 Accordingly, we affirm the WCJ’s March 6, 2014 Findings And Order as the Decision After 26 Reconsideration of the Workers’ Compensation Appeals Board. 27 / / / PATTERSON, Jennifer 10 1 For the foregoing reasons, 2 IT IS ORDERED, as the Decision After Reconsideration of the Workers’ Compensation 3 Appeals Board, that the March 6, 2014 Findings And Order of the workers’ compensation administrative 4 law judge is AFFIRMED. 5 WORKERS’ COMPENSATION APPEALS BOARD 6 7 /s/ Katherine A. Zalewski_________________________ 8 9 I CONCUR, 10 11 12 /s/ Marguerite Sweeney__________________ 13 14 15 /s/ Frank M. Brass_______________________ 16 17 18 19 DATED AND FILED AT SAN FRANCISCO, CALIFORNIA 7/24/2014 SERVICE MADE ON THE ABOVE DATE ON THE PERSONS LISTED BELOW AT THEIR ADDRESSES SHOWN ON THE CURRENT OFFICIAL ADDRESS RECORD. 20 21 22 JENNIFER PATTERSON JOSEPH GRAHAM, ESQ. GUILFORD, SARVAS & CARBONARA 23 24 25 26 27 JFS:jmp:abs PATTERSON, Jennifer 11