June 24, 20190

Summer weather has arrived across California and in the Bay Area, in particular, I can confirm we all felt like we were working on the surface of the sun for a few days there.  Employers, especially in physically demanding fields, should remember to make sure everyone is hydrated and cool to keep claim forms from becoming the latest summer trend.  Otherwise, enjoy some much-missed sun after what was a long fall and winter season.      


While the local Sacramento River Cats may have fallen to the Omaha Storm Chasers 7-1 on June 14th, fun was still had by our clients and the Mullen & Filippi attorneys who were able to attend the annual outing put on by the firm.  Over good food and drinks and in lovely weather for a night game, shop was talked, connections were made, and everyone had a great time.  If you are interested in attending next year’s game, please let us know in advance, as tickets always go fast.    


The California Court of Appeal for the 2nd District recently indicated that an injured worker’s home health care treatment requests must comply with the UR/IMR process, in the case of Allied Signal v. WCAB (Wiggs) (2019).  The applicant had extensive medical care between 1998 and 2012 culminating in a dispute over whether home health care in the form of housekeeping services needed to be provided.  The parties resolved that initial dispute and stipulated that a registered nurse would provide an assessment as to whether that care was necessary and report back to the primary treating physician.  The nurse issued such a report finding some housekeeping was necessary and the employer provided such services.  Another RFA then issued in 2014 for similar services, which were again authorized.  In 2015, however, a request issued for an increase in the frequency of the housekeeping services and the request was denied by UR.  The denial was never appealed to IMR and applicant instead brought the matter before the WCAB at an Expedited Hearing.  The WCJ ordered that the parties return to the registered nurse who issued to prior report to develop the record further and the defendants filed a petition for reconsideration and removal.  A majority panel of the WCAB upheld the WCJ’s decision to develop the record, finding that the 2012 stipulation to use the registered nurse constituted a “procedure for evaluating applicant’s need for homecare…”  The dissenting commissioner found that the stipulation of 2012 was for a one-time evaluation in 2012.   

The Court of Appeal found that the appeals board acted in excess of its jurisdiction and annulled the decision.  In addressing the issue the Court first noted that with two limited exceptions, “neither a workers’ compensation judge (WCJ) nor the appeals board has jurisdiction over the utilization review process.”  The two exceptions the Court noted are where the UR decision is untimely, or the parties have agreed to waive their right to pursue the statutory review process.  The Court rejected the WCAB’s position that the WCJ’s order to develop the record was an interlocutory order that did not implicate jurisdiction and found that the dispute presented a threshold issue justifying its review. 

The Court stated that a majority of the appeals board concluded that one of the exceptions applied because they found that the parties had stipulated that the “issue of a home assessment for housekeeping services would be decided by a specific registered nurse.”  The Court, however, rejected this conclusion, finding that the parties only agreed that the nurse would provide a home assessment for housekeeping services in one instance in 2012 previously and that there was no agreement that the nurse would continue to be “the arbiter” of the issue of home health care after her single visit.  The Court reaffirmed that the provisions of Labor Code 4610.5 apply to home health care as form of medical treatment under Labor Code 4600. 

In its decision, the Court distinguished the case from Patterson v. The Oaks Farm (2014), 79 Cal.Comp.Cases 910, stating that Patterson held that an employer cannot unilaterally terminate services, even in the absence of a renewed prescription, where it has acknowledged the reasonableness and necessity of such services.  The Court noted that in the case at hand the employer had continued to provide housekeeping at the frequency it had agreed was reasonable and only denied a request for an increase in those services. 

For practitioners the takeaway appears to be that the parties should be clear as to the scope of any agreement to submit a medical decision to an expert outside of the UR system.  If the parties agree that such an expert is better positioned to make decisions as to medical care in any given case and that expert is to make decisions as to care on an ongoing basis, that should be clearly reflected in the language of any stipulation or agreement.  If the parties intend to limit that expert’s role in determining medical care to a particular instance or time period, that too should be noted in the language of any agreement. 

The full decision is available at the following link:



The annual Workers’ Compensation Insurance Rating Bureau conference took place on 6/13/2019 and President Bill Mudge announced that the series of reforms, including SB 863, that were enacted in response to a system-wide crisis driven by costs that saw several carriers go under, has resulted in six consecutive years of profitability.  Attendees, however, remained concerned with frictional costs including unallocated loss adjustment expenses, attorneys’ fees, and liens.  The WCIRB, per Chief Actuary Dave Bellusci, estimates that a single lien usually results in approximately $3,000 in frictional costs.  Other concerns included an increase in the filing of cumulative trauma claims, which have essentially doubled in the last decade, according to Bellusci and the WCIRB.  Another interesting takeaway is that claim frequency is 25% lower than the statewide average in the greater Bay Area and 25% higher than the statewide average in the greater Los Angeles area.  Data since the 1970s has indicated a consistent difference in claim frequency between these two regions.


The Case Briefs section of our website is a great resource as to case law and statutory interpretation in workers’ compensation and provides practice pointers, insights into recent cases, and updates on changes in the law.  This month, Brock Roverud, Managing Associate Attorney of our Fresno office, discusses the implications of the Significant Panel Decision of Nelly Romero v. Costco Wholesale (2006) 72 CCC 824 in panel disputes, and opines that the procedural requirements of Labor Code 4062.2 apply the moment an injured worker signs a representation agreement.  Such an interpretation would require applicant’s counsel to serve objection to a medical finding before requesting a panel rather than directly requesting a replacement panel from the Medical Unit in a different specialty upon taking on representation. 

Head to www.mulfil.com/case-briefs to give them a read.

This Bulletin was written by Jim Cotter, Associate Partner in our Oakland office.

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