WCAB San Francisco,
September 14, 2017
The WCAB upheld a finding by the WCJ of entitlement to 24/7 home health care. The defendant had been authorizing 8 hours of home care 5 days per week through an agency for some time, but there had been medical reporting by the treating physicians through the years indicating that 24/7 home care was medically necessary. Her adult son had been providing the rest of the home care that was not being authorized and had filed a lien to recover for services rendered. The earliest report indicating the need for 24/7 care was issued by the primary treating physician on December 20, 2012. The WCJ found that the applicant was entitled to 24/7 home care from December 20, 2012 to present and continuing because the defendant had failed to perform its duty to investigate under Labor Code 4600 and per Neri Hernandez.
An IMR determination from July 24, 2014 had been issued authorizing 12 hours of home care at 7 days a week for two weeks. The defendant argued in its appeal that this issue was under the jurisdiction of IMR and the WCJ could not decide it. The WCAB, in upholding the WCJ’s decision of 24/7 care, rejected the defendant’s argument, not only because they failed to timely raise that objection, but also because it did not present evidence supporting such a claim. In fact, the record appeared to show the UR decision, upheld by IMR, was untimely, which would bring this issue within the jurisdiction of the Board under Dubon II.
Defendant has filed a petition for writ of review.