ADJ15692843 · December 12, 2023

The Board found that the WCJ's award of home health care was not supported by sufficient explanation of how the applicant's symptomatology met the criteria for home health care under the MTUS, and the type and duration of services were not specified, warranting further development of the record.

From the decision · page 7Here, the record shows that Dr. Merman concluded that applicant requires home health care of four hours per day, five days per week, but his reporting does not explain how applicant's symptomology met criteria applicable for that determination. (Ex. AA, PTP PR-2 and RFA from Jan Merman, M.D., March 16, 2023, pp. 2-4; Ex. CC, PTP PR-2 and RFA from Jan Merman, M.D., April 17, 2023, pp. 27-29.)

Dr. Merman's reports concluded home health care was required but did not explain how symptomatology met MTUS criteria or specify type and duration of services.

Favours Defendant prevailed

Lack of explanation and specificity in medical reports led Board to remand for further proceedings to develop the record.

From the decision · page 7Here, the record shows that Dr. Merman concluded that applicant requires home health care of four hours per day, five days per week, but his reporting does not explain how applicant's symptomology met criteria applicable for that determination. (Ex. AA, PTP PR-2 and RFA from Jan Merman, M.D., March 16, 2023, pp. 2-4; Ex. CC, PTP PR-2 and RFA from Jan Merman, M.D., April 17, 2023, pp. 27-29.)

Concluded applicant requires home health care four hours per day, five days per week, but did not explain how symptomatology met criteria or specify type and duration of services.

From the decision · page 7Here, the record shows that Dr. Merman concluded that applicant requires home health care of four hours per day, five days per week, but his reporting does not explain how applicant's symptomology met criteria applicable for that determination. (Ex. AA, PTP PR-2 and RFA from Jan Merman, M.D., March 16, 2023, pp. 2-4; Ex. CC, PTP PR-2 and RFA from Jan Merman, M.D., April 17, 2023, pp. 27-29.)

Diagnosed daily new persistent headache and treated with Elavil; noted prior infrequent headaches and brain MRI findings.

From the decision · page 3The patient saw Dr. Teresa Luna, neurologist, on April 8, 2021. However, he told her prior to COVID, he had no headaches or at least sporadic and infrequent. His headaches were 20 to 25 days a month when he saw Dr. Luna mild-to-moderate. She diagnosed him with daily new persistent headache and started him on Elavil. She wanted to get an MRI scan of his brain which was done on August 19, 2021 which revealed numerous nonspecific punctate T2 hyperintense lesions with subcortical deep white matter which could represent demyelinating diseases versus vasculitis versus migraine headaches versus chronic microvascular ischemic changes.... After review of the records, there are some discrepancies. For instance, he told Dr. Luna that he has no headaches or occasional headaches. However, previous headaches are more frequent prior to COVID infection. He also had multiple areas of stress which included work-related stress probably from overworking 15 to 16 hours a day. However, he also had problems with his wife. He also had back injury possibly a knee injury from his employment, which could have cause stress.

Sandhagen v. WCAB (2022) 87 Cal.App.5th 978

Applicant must prove medical necessity of treatment by preponderance of evidence consistent with MTUS or by substantial medical evidence showing variance reasonably required to cure or relieve injury.

Applicant may carry burden by demonstrating MTUS criteria met or presenting substantial evidence for variance; Board may order record development for due process.

From the decision · page 6The Legislature amended section 3202.5 to underscore that all parties, including injured workers, must meet the evidentiary burden of proof on all issues by a preponderance of the evidence. Accordingly, notwithstanding whatever an employer does (or does not do), an injured employee must still prove that the sought treatment is medically reasonable and necessary. That means demonstrating that the treatment request is consistent with the uniform guidelines (§ 4600, subd. (b)) or, alternatively, rebutting the application of the guidelines with a preponderance of scientific medical evidence (§ 4604.5). (Sandhagen, supra, at p. 990.)

Applicant's credible testimony about difficulty with activities of daily living and need for assistance with basic tasks such as cutting food, getting up, shopping, and laundry.

From the decision · page 5The undersigned issued the Findings and Award wherein it was found that the applicant is entitled home health care to assist with his activities of daily living four hours per day, five days per week, as per the opinion of Dr. Merman.... The applicant provided credible testimony at trial regarding his need for assistance with his activities of daily living. For example, the applicant testified that it is hard to control utensils when he holds them. It becomes scary for him to manage if he's cutting something, so he does not cut his hand. He does not have control because of pain. (MOH, September 19, 2023, pg. 2, lines 22-24).