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- Published on Saturday, 09 November 2013 09:00
SB 863 re Home Health Care is Retroactive
Summary Written by Gregory Tanner
Clifford Mulford v El Toro RV Inc (ADJ7763946 - AHM)
Home Health Care
A WCAB panel decision recently held that the home health care provisions of SB 863 are retroactive to all dates of injury for ongoing cases.
Applicant's petition for removal dismissed and petition for reconsideration is denied by WCAB panel where the applicant requested the WCJ decision that the defendant was not liable for home health care after Oct 23, 2012.
Applicant sustained a brain injury on Mar 8, 2011 when he fell off of a ladder. The defendant provided home health care to the applicant six hours per day five days per week for 12 weeks up to Oct 23, 2012 per the recommendation of an occupational nurse. The defendant agreed to pay the applicant's wife $20 an hour.
A Dec 5, 2012 report of Dr. Adams, a neurologist, did not mention home health care. At an expedited hearing on Jan 15, 2013, the applicant produced a note from Dr. Adams that stated "Home health or or [sic] case manager RN to eval for ongoing home health assistance."
Held that LC 4600(h) is retroactive to all ongoing dates of injury and that the applicant failed to meet burden of proof that his doctor prescribed home health care. The panel reasoned that the note from Dr. Adams was insufficient since it merely requested an evaluation to determine whether home care services should be provided. The panel further noted that the burden is on the applicant to prove home health care services were/are "reasonably required to cure or relieve the applicant's injury" and "prescribed by a physician or surgeon."
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- Published on Wednesday, 02 January 2013 09:01
Petition to Reopen Allowed and Award Increased
Summary Written by Gregory Tanner
In a panel decision, Tuyet Tran v. Zenith (2012 Cal Wk Comp PD LEXIS 444) the WCAB held that a petition to reopen may be allowed per LC 5803 and 5804 because of a change in the law per Almarez/Guzman cases which issued after the initial award in the case. The panel further increased the 7% award to 25% based on the panel QME's 2006 report allowing 16% wpi based on grip loss. Per the panel, the Almarez/Guzman cases, as en banc decisions, were sufficient "new law" to constitute good cause to reopen the award per LC 5803 and 5804. In addition, the rating of grip loss is allowed per the Almarez/Guzman cases since grip loss is within the four corners of the AMA Guides despite the fact that the applicant exhibited decreased motion and painful condition which would preclude the use of grip loss per page 508 of the Guides.
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- Published on Monday, 31 December 2012 09:03
Yesenia Guillen v. Adir International - PQME Strike Letter
Summary Written by Gregory Tanner
In a WCAB Panel decision, the WCAB held that, while not best practice, there is nothing in the Labor Code that precludes notice of a strike of a QME from a panel during the 10 day meet and confer period. Therefore, both strikes were proper and the remaining QME was ordered to examine the applicant.
- Details
- Published on Friday, 02 November 2012 09:03
One QME per date of injury
Summary Written by Gregory Tanner
Per Juan Franco, 2011 CWCPD Lexis 317, the applicant may obtain a different PQME for each claimed injury. In Franco, MSC was held re injury No. 1 on DOR filed by the AA. Defendant objected as they were unable to obtain an exam by the PQME Yashruti who was unavailable until after the MSC. Yashruti was the PQME in injury No 2 and had never examined the applicant re this injury. The WCJ denied the request for the exam and set the case for trial on injury No 1. Defendant's petition for removal was denied. Per the WCJ, LC 4062.2 required a QME for each date of injury.