In the kind of case that boggles the mind and fires-up some state legislatures to reform their Workers’ Compensation laws, a Van Nuys judge awarded an applicant the services of a housekeeper, gardener, pool serviceman and penalized the employer under Labor Code section 5814 for not voluntarily authorizing this “medical treatment” in the first place.
The majority of a divided WCAB panel rescinded the judge’s award because the medical need for the services had not been demonstrated by substantial medical evidence. Bishop v. Zurich Ins. Co.
The applicant had been awarded 77% PD and future medical treatment in 2006. In 2007, his new primary treating physician wrote a report complaining that the applicant was unable to do yard work or maintain his home. The doctor prescribed housekeeping, gardening, pool cleaning services and a weight reduction program, among other items.
The majority of the WCAB panel noted that an injured worker may be entitled to ancillary services as part of a medical treatment award if there is a demonstrated medical need. That determination depends on the record in each case. The Board then cited cases where the WCAB was split on whether there was demonstrated need for housekeeping services, and a case where mortgage expenses were found not to be medical treatment (as if we even needed a case to tell us that!)
The panel explained that a doctor’s recommendation for ancillary services must be specific as to the scope and duration of the recommended services, and explain how and why the housekeeping, gardening and pool services were “medical care” and why they were reasonable and necessary on an industrial basis. The doctor should offer analysis of whether the applicant ever performed these activities himself before the injury, whether they are activities of daily living, and whether performance of those activities would have a long-term effect on the applicant disability (as opposed to short-term discomfort.) The doctor should also make clear that the services are reasonable in light of the scope of medical treatment and its defined goals.
The majority of the panel then remanded the case instructing the judge to reconsider the penalty award. Interestingly, a dissenting commissioner opined that the applicant was entitled to housekeeping, gardening, pool cleaning services under the future medical award.