California Fringe Medical Benefits: A Question of Evidence

In Logudice v. Mimi’s Café, 2015 Cal. Wrk. Comp. P.D. LEXIS --, a WCAB panel affirmed the WCJ’s finding that the defendant was liable for residential relocation, moving costs, rent differential, and housekeeping services as reasonable and necessary medical treatment to cure or relieve the effects of orthopedic and internal injuries suffered by the applicant/restaurant manager on 4/23/96 which rendered the applicant permanently totally disabled.

Contrary to the defendant’s assertion, the WCAB held the parties were not required to submit a medical treatment request to utilization review/independent medical review and the WCJ could decide the medical necessity dispute based on substantial evidence, as the treatment requests were made before 1/1/2013.

The WCAB determined that the WCJ’s medical treatment award was supported by the reports of the primary treating physician indicating that the applicant’s debilitating pain required that she move to an apartment without steps and that she have help with packing/unpacking and transportation, and by the agreed medical examiners’ deposition testimony that the applicant “should not be navigating so many stairs just to get into her apartment, which once inside, also has an upstairs area.” Here, the WCJ had previously concluded that there was no way to modify the applicant’s existing apartment and there was no adequate assistive device to help the applicant.

COMMENTARY:

The traditional view has been that fringe medical benefits, such as residential modifications, residential relocation, housekeeping services and the like that are not strictly of a “medical” quality still constitute “medical treatment” under the workers’ compensation process. Recently, several WCAB panel decisions reported/being added to the LexisNexis noteworthy panel decisions database have addressed whether these fringe medical benefits continue to be considered part of the medical treatment benefit, and if they are, how such recommendations should be evaluated?

These recent cases seem to suggest a willingness on the part of the WCAB to adopt the traditional view and include these fringe benefits in the “medical treatment” benefit. However, there may be some disagreement on how to determine if a fringe benefit is medically appropriate in a given case.

One view appears to acknowledge that these fringe benefits may not fall nicely within the new laws applicable to medical treatment. This view focuses on the more traditional view of what constitutes substantial evidence in a medical treatment dispute. The view focuses on whether the treatment recommendation is reasonable in terms of the applicant’s condition and why the treating physician is making the request.

(Publisher’s Note: Citations link to lexis.com; bracketed cites link to Lexis Advance.)

The other view argues that through the enactment of recent statutes, the Legislature has shown that a dispute over proposed medical treatment has to be determined by the use of evidence-based standards and medical opinion. (See Lab. Code, § 5307.27 [LC 5307.27] [which provides for the development of a medical treatment utilization schedule (MTUS) that "shall incorporate the evidence-based, peer-reviewed, nationally recognized standards of care"] and Lab. Code, § 4610.5(c)(2) [LC 4610.5] defining "medically necessary" and "medical necessity" based upon a hierarchy of standards).

These contrasting views could have a significant impact on how these disputes are decided. For example, in Logudice the panel upheld the award of relocation costs. Relocation costs are probably not the subject of any type of treatment guideline. They are probably not the subject of any peer reviewed studies. Likewise, they are probably not the subject of any nationally recognized standards. While the hierarchy of standards described in Lab. Code, § 4610.5 do allow for consideration of expert opinion as well as generally accepted standards of medical practice, will a UR physician be willing to certify these types of fringe benefits when all that exists is these lesser standards of evidence? If the treating physician’s opinion is even considered in one of these disputes, will it constitute substantial evidence to support an award of benefits if all it is based on is the physician’s clinical opinion?

In conclusion, while the WCAB panels in Logudice and other recent decisions reported in the LexisNexis noteworthy panel decisions database, have signaled that they are willing to accept the traditional view of awarding these costs as medical treatment, there appears to be a disagreement among the commissioners as to the nature of the evidence that must be used to support such a recommendation. It's unclear whether the Administrative Director will adopt a guideline to help clarify this issue. Meanwhile, the issue is being dealt with by the WCAB on a case-by-case basis.

Read the Logudice noteworthy panel decision.*

* CAUTION: This decision has not been designated a “significant panel decision” by the Workers’ Compensation Appeals Board. Practitioners should proceed with caution when citing to this panel decision and should also verify the subsequent history of the decision. WCAB panel decisions are citeable authority, particularly on issues of contemporaneous administrative construction of statutory language [see Griffith v. WCAB (1989) 209 Cal. App. 3d 1260, 1264, fn. 2, 54 Cal. Comp. Cases 145]. However, WCAB panel decisions are not binding precedent, as are en banc decisions, on all other Appeals Board panels and workers’ compensation judges [see Gee v. Workers’ Comp. Appeals Bd. (2002) 96 Cal. App. 4th 1418, 1425 fn. 6, 67 Cal. Comp. Cases 236]. While WCAB panel decisions are not binding, the WCAB will consider these decisions to the extent that it finds their reasoning persuasive [see Guitron v. Santa Fe Extruders (2011) 76 Cal. Comp. Cases 228, fn. 7 (Appeals Board En Banc Opinion)].  LexisNexis editorial consultants have deemed this panel decision noteworthy (a “noteworthy panel decision”) because it does one or more of the following: (1) Establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in other decisions, or modifies, or criticizes with reasons given, an existing rule; (2) Resolves or creates an apparent conflict in the law; (3) Involves a legal issue of continuing public interest; (4) Makes a significant contribution to legal literature by reviewing either the development of workers’ compensation law or the legislative, regulatory, or judicial history of a constitution, statute, regulation, or other written law; and/or (5) Makes a contribution to the body of law available to attorneys, claims personnel, judges, the Board, and others seeking to understand the workers’ compensation law of California.

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