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The consolidated cases filed by Javier Espino against Fullerton Foods for 2001 injuries to his back, knees, right shoulder, pysche, sleep, and gastrointestinal system, were resolved by a July 28, 2015 C&R approval. The settlement left open the issues of medical treatment and lien of his daughter, Belinda Espino for the home health care she provided.

The parties proceeded to trial over the issue of the entitlement to home health care, both retroactively and prospectively, as provided by Ms. Espino. The defendant’s contended there was no request for authorization for home health care prior to June 21, 2016.and this was submitted to UR.

The WCJ awarded the disputed home health care. Reconsideration was denied in the panel decision of Espino v Fullerton Foods, ADJ326655-ADJ439309 (June 2022).

In resolving the contentions of the parties, the WCAB panel discussed significant procedural errors. It noted that the June 21 2016 UR determination did not specify that applicant’s attorney’s office was served although it was addressed to applicant at the address for his attorney’s office. And subsequent 2017 UR determinations were not served on his attorney as well.

In Dubon v. World Restoration, Inc. (2014) 79 Cal.Comp.Cases 1298, 1299 (Appeals Board en banc) (Dubon II), the Appeals Board held that if UR is untimely the determination of medical necessity for the treatment requested may be made by the Appeals Board.

An employer has the duty to provide reasonable medical treatment upon learning of the need. (Lab. Code, § 4600). This was made clear by the California Supreme Court in Braewood Convalescent Hospital v. Workers’ Comp. Appeals Bd. (Bolton) (1983) 34 Cal.3d 159, 165 [48 Cal.Comp.Cases 566]. The Supreme Court wrote that “Section 4600 requires more than a passive willingness on the part of the employer to respond to a demand or request for medical aid. – This section requires some degree of active effort to bring to the injured employee the necessary relief” (Citations omitted.)

The WCAB panel noted another procedural error when it said that “It does not appear that defendant investigated applicant’s need for home health care or provided it pursuant to the opinions of the AME and Dr. Sohn despite its duty to expeditiously and actively investigate.”

Although the AME stated that applicant needed home health care for eight weeks in 2002, the record does not reflect that defendant provided it or investigated applicant’s need. Instead, post-surgery care was provided by applicant’s daughter. In his January 22, 2008 report, Dr. Sohn prescribed home health care, eight hours weekly, which was open-ended and did not limit the duration that applicant would need these services.

Because defendant did not take an active role in providing the needed medical treatment, it “becomes liable for the reasonable value of self-procured medical treatment.” (Bolton, supra, at p. 165.)

The WCAB panel noted another procedural error at the beginning of its option when it wrote “our review of the record is complicated by defendant’s failure to comply with WCAB Rule 10945(b), which provides, in relevant part: ‘[e]very petition for reconsideration …. shall support its evidentiary statements by specific references to the record.'”

It went on to write that “Here, defendant has violated Rule 10945(b), has failed to support its arguments with specific citations, and has not cited to the record as required. Defendant cannot evade this responsibility and place the burden on the Appeals Board to discover where the evidence supporting its petition can be found.”

And finally, the panel noted another procedural error when it wrote “Defendant has filed a Response to Applicant’s Answer to Petition for Reconsideration, without our permission and in violation of Workers’ Compensation Appeal Board (WCAB) Rule 10964. Although defendant should have complied with Rule 10964 and requested permission, we accept defendant’s supplemental pleading and include it in our deliberations.”

The takeaway from this case is that the WCAB is clearly urging practitioners – and the parties they represent – to strictly comply with the procedural requirements of the statutes and regulations that apply. In some cases, such as in the Utilization Review process, the failure to comply even with details of the service of documents can be a costly mistake.