Roque Neri Hernandez filed a claim against Geneva Staffing, Inc.as a result of a severe crush injury to his right dominant hand on July 11, 2011 During his initial hospitalization, applicant had three surgeries on his hand. Once he was home, he developed a serious infection in his hand, which necessitated a fourth surgery on September 19, 2011. Then, on December 20, 2011, he had a fifth surgery. Further surgery on applicant’s right hand has been recommended.
Applicant was cared for at his home by his spouse. A handwritten note on St. Mary’s Medical Center letterhead stated “This is to notify that Neri Hernandez Roque has been under the care of Dr. Charles K. Lee for severe injury to his right hand since 7-11-11 at which time he has needed constant care from his wife Adrianna Bayona. Mr. Neri Hernandez will need continuous care as his ongoing treatment goes on. [sic]” What appears to be a signature for Dr. Lee is scrawled on the bottom of the letter.
In his November 5, 2012 report, Dr. Gordon opined that: “As far as the second question which relates to an attendant, I do feel that it is reasonable for the patient to have support, transportation, and attendant care at the rate of six hours per day. There does not appear to be any particular need for skilled nursing as at this time there are no bandages or unusual care that is needed, and this would be at the unskilled level.”
Applicant sought an order for home health care services provided by his spouse; an award “for retroactive payment . . . to the date of injury payable to the applicant as a medical benefit;” and attorney’s fees. Applicant contended that his spouse’s testimony was an adequate basis to determine the hourly rate of reimbursement. Defendant contended that the November 11, 2011 report by Dr. Lee was not a valid prescription for home health care services as it did not specify the type of care or number of hours of care required; that neither Dr. Lee’s nor Dr. Gordon’s report was sufficient to determine the type of care required; and that Senate Bill [SB] 863 controlled.
A Findings and Award, found that applicant was entitled to medical treatment in the form of home health care services beginning on August 3, 2011 and continuing and awarded applicant payment for self-procured home health care services. He awarded services for 24 hours per day, 7 days per week from August 3, 2011 to November 4, 2012, and for 6 hours per day, 7 days per week from November 5, 2012 and continuing. He awarded payment based on applicant’s spouse’s regular hourly rate of pay at the day care center where she worked. Defendant sought reconsideration and contended that newly enacted Labor Code sections 4600(h) and 4603.2(b)(1) applied.
The WCAB reversed in the en banc decision of Hernandez v Geneva Staffing. With regard to the SB 863 additions and amendments to the Labor Code regarding home health care services, which became effective January 1, 2013, the Appeals Board held:
1) Sections 4600(h), 4603.2(b)(1), and 5307.8 apply to requests for home health care services in all cases which are not final regardless of date of injury or dates of service.
2) The prescription required by section 4600(h) is either an oral referral, recommendation or order for home health care services for an injured worker communicated directly by a physician to an employer and/or its agent; or, a signed and dated written referral, recommendation or order by a physician for home health care services for an injured worker.
3) Under section 4600(h) home health care services are subject to either section 5307.1 or section 5307.8; section 5307.1 applies where an official medical fee schedule or Medicare schedule covers the type of home health care services sought; and otherwise, section 5307.8 applies.
Section 4600(h) makes clear that home health care services are included in the definition of “medical treatment,” but it also limits an employer’s duty to provide that treatment by imposing two additional conditions which are part of an injured worker’s burden of proof. The first condition requires that home health care services be prescribed by a physician, and an employer may become liable for home health care services provided 14 days prior to receipt of a prescription. The second condition requires that an employer’s liability for home health care services is subject to either section 5307.1 or section 5307.8. Section 5307.1 applies where an official medical fee schedule or Medicare schedule covers the type of home health care services sought. When the type of services sought is not covered by an official medical fee schedule or Medicare schedule, section 5307.8 applies.
The WCAB concluded that the note written by Dr. Lee “is a prescription for home health care services within the meaning of section 4600(h).” But the WCAB went to on conclude “It may be that defendant received medical records from the hospital from before November 11, 2011 containing a referral or recommendation for home health care services or providing notice of applicant’s need for home health care services. Applicant’s spouse’s testimony suggests that Dr. Lee may have communicated with defendant about applicant’s need for home health services and at a minimum, raises an inference that defendant may have received notice of the need for home health care services such that it should have investigated. Thus, we are unable to determine based on the evidence in the record before us whether the liability period may have begun at an earlier time.” Thus “we rescind the Findings and Award and return the matter to the WCJ for further development of the record consistent with this opinion and a new decision.”