It is not easy for parties to succeed in the appeal of an IMR determination at the WCAB. The California legislature adopted as a standard that the aggrieved party must show that at the IMR level there was a “plainly erroneous finding of fact based upon ordinary knowledge and not expert opinion.” A recent Opinion after Reconsideration demonstrates how this standard is viewed by a WCAB panel on Reconsideration.
In this case, Erlinda Cantillo suffered injury to her back and knee while working for Amazon.com Inc. Following her total knee replacement, and lumbar spine surgery she was using a walker to assist with ambulation, and was having “severe difficulties” with activities of daily living. Her. treating physician requested home health care 4 hours a day and 4 days a week for 3 months. After the UR process, IMR determined that the home health care was “not medically necessary and appropriate” and declined to authorize the request.
The matter proceeded to trial, and the WCJ admitted exhibits entitled Initial Approaches to Treatment Guidelines dated June 30, 2017, Medical Report of Dr. Ahmed dated June 14, 2021, and IMR Final Determination dated January 12, 2022, into evidence. After submission, the WCJ found that the “IMR determination was not the result of a plainly erroneous finding of fact based upon ordinary knowledge and not expert opinion” and denied to reverse the IMR determination.
Applicant petitioned for reconsideration, and a WCAB panel rescinded the F&O and substituted a finding that “the January 12, 2022 IMR determination applied the MTUS Initial Approaches to Treatment Guidelines in a plainly erroneous manner based upon ordinary knowledge and not expert opinion” and substituted an order that the UR determination be remanded to the AD for submission to a different independent review organization or different reviewer as provided in Labor Code section 4610.6(i) in the panel decision of Cantillo v Amazon – ADJ12704660 (June 2022).
The Court of Appeal held that IMR determinations are subject to meaningful review, even if the Appeals Board cannot change medical necessity determinations, noting that “[t]he Board’s authority to review an IMR determination includes the authority to determine whether it was adopted without authority or based on a plainly erroneous fact that is not a matter of expert opinion” (Stevens v. Workers’ Comp. Appeals Bd. (2015) 241 Cal.App.4th 1074, 1100.)
Here, the IMR reviewer relied upon MTUS providing that “[h]ome healthcare is selectively recommended . . . to overcome deficits in activities of daily living . . . [and indicated when] the patient is unable to leave the home without . . . [a] walker.” In doing so, the reviewer explicitly recognized medical evidence that applicant has ” ‘severe difficulty’ with activities of daily living” and “ambulates with [an] assistive device” due to those difficulties.
Yet the reviewer concluded that home healthcare was “not medically necessary” without explaining how this evidence fell outside the MTUS or citing evidence that applicant was able to perform daily living activities without difficulty or ambulate without an assistive device or was not “homebound” as her primary treating physician had opined.
“Hence, inasmuch as the MTUS recommend that home healthcare is to be provided to overcome deficits in daily living – and specifically indicated when the patient is unable to leave the home without major assistance requiring devices such as a walker – it is clear that the IMR determination applied the MTUS in a plainly erroneous manner based upon ordinary knowledge and not expert opinion.”
In addition, the IMR reviewer relied upon MTUS providing that a “home evaluation is necessary to develop the home health care treatment plan” as a separate ground supporting the conclusion that home healthcare was not medically necessary.
However, the MTUS do not state that a home evaluation must be performed in order for home healthcare to be recommended, but rather to ensure that such care is provided safely and correctly.
“It follows that the IMR reviewer’s conclusion that the lack of ‘documentation of home health evaluation’ provided an additional ground to deny applicant’s home healthcare request was also based upon a plainly erroneous application of the MTUS.”