The applicant, Elvin Salguero sustained an admitted injury consisting of partial amputation of his left fourth and fifth fingers and other body parts. After several hearings, the WCJ determined that the defendant had lost treatment control and that the claimant was entitled to treat with his free choice treater, Dr.Fred Hekmat. The case was resolved with a compromise and release to disputed body parts, and a stipulated award to 53% regarding the left 4th and 5th finger and psyche, with provision for future care for these admitted body parts.

With regard to the disputed claim for home care, the documentary record at the trial showed that the applicant was psychiatrically hospitalized at Brotman Medical Center after verbalizing intent to kill himself by jumping off a freeway overpass. More specifically, the report of his secondary psychiatric treater, Elena Konstat Ph.D., noted a significant suicide risk and significant depression in recommending a psychiatric hospitalization.

After his discharge, Konstat reported that Salguero “must remain in a safe and controlled environment closely monitored for his well-being. Therefore, 24/7 home cares [sic] assistance, and transportation to all medical appointments is recommended. Mr. Salguero is taking potent medication, and should not drive himself as he maybe [sic) a danger to himself, or others. In addition, his medications should be provided by preferably an LVN, or Psychiatric Technician.” After reviewing this report, the PTP stated that “”Based upon these further records from Dr. Konstat, I feel that certainly the patient requires the following: … [Par.] The patient requires 24/7 home care assistance by a psyche technician or LVN which is necessary to cure and relieve Mr. Salguero from the effects of his orthopaedic injury.” No UR report or other competent medical evidence was prepared in response to any of the reports discussed above, at least with regard to the home care request.

The case went to expedited trial on the limited issues of applicant’s request for authorization of a hand surgeon referral, stellate blocks and 24/7 home care. On cross-examination, he stated that he wanted to kill himself and had a specific plan to do this. Nonetheless, the WCJ found that good cause had not been shown to authorize his request for 24/7 home care. The applicant’s reconsideration petition as to the home care issue followed. The WCAB affirmed the denial in the panel decision of Elvin Salguero v Charles Gemeiner Cabinets and Insurance Company of the West.

The California Supreme Court has recently made clear that “[N]otwithstanding whatever an employer does (or does not do), an injured employee must still prove that the sought treatment is medically reasonable and necessary. That means demonstrating that the treatment request is consistent with the uniform guidelines (§ 4600, subd. (b)) or, alternatively, rebutting the application of the guidelines with a preponderance of scientific medical evidence. (§ 4604.5)” (Sandhagen v. WCAB, 73 CCC 981, 990.).

The Board has applied this principle to deny authorization for a given modality of care even where the defendant has neglected to carry out timely UR review. In Garcia v. Souplantation, 2011 Cal. Wrk. Comp.P .D. LEXIS 116, a request for authorization of epidural injections which was never rebutted via UR review was nevertheless held insufficient to support a need for such procedures where the ACOEM guidelines disfavored such a procedure and the treater requesting authorization never explained any basis for deviating from these guidelines. In Chairez v. Cherokee Bindery, 2012 Cal.Wrk.Comp.P.D. LEXIS 506, an award of 24/7 home care was reversed, mainly because of an unclear record. However, the board panel instructed the trial judge on remand that “In addressing the issue of home health care as medical treatment, the WCJ should consider that even if it is determined that a utilization review is untimely or otherwise invalid, the applicant still has a burden of proving that the requested treatment conforms with the requirements of Labor Code section 4604.5 by showing that it is in accord with the appropriate guidelines, or by rebutting the presumption of reasonableness of treatment in accord with those guidelines, or by showing that a variance from those guidelines is reasonably required to cure and relieve applicant from the effects of his industrial injury. [Sandhagen cited.] In short, an untimely or improper utilization review does not automatically require issuance of an award of the requested treatment. Instead, it must also be shown by applicant that the requested treatment is within the applicable guidelines or is otherwise reasonable medical treatment.”

There was no reference to any treatment guidelines or discussion of such guidelines in any of the reports submitted in this case. Dr. Konstat’s rather unusual request for 24/7 home care as a modality of care for severe depression. There is no mention of any such modality of care in Chapter 15 of the ACOEM guidelines regarding stress complaints.