What the panel ordered
The WCAB affirmed the Supplemental Findings of Fact and Award re Home Healthcare issued on October 26, 2020, denying defendant's Petition for Reconsideration.
Defendant filed a timely Petition for Reconsideration from the October 26, 2020 Supplemental Findings of Fact and Award re Home Healthcare. The WCAB granted reconsideration to study the issues and now issues a Decision After Reconsideration affirming the WCJ's award.
What was disputed, and how it came out
Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.
The WCJ and WCAB found that the applicant requires 18 hours per day of home healthcare provided by his spouse at rates equivalent to those paid to outside agencies, and that defendant's arguments to reduce hours or rates lacked merit due to the medical necessity and stipulations.
From the decision · page 1Defendant seeks reconsideration of the Supplemental Findings of Fact and Award Re Home Healthcare (F&A) issued on October 26, 2020,1 wherein the workers' compensation administrative law judge (WCJ) found in pertinent part that (1) applicant requires home healthcare of eighteen hours per day, seven days per week, consisting of ten hours of Certified Nurse Assistant (CNA) care and eight hours of Licensed Vocational Nurse (LVN) care per day; (2) these services are to be provided by applicant's spouse, Theresa the applicant, a registered nurse; (3) the most appropriate rates of reimbursement for the applicant's services are the rates which defendant would otherwise pay a third party health care services provider; and (4) the appropriate reimbursement rates of reimbursement are $50.00 per hour for LVN care and $30.00 per hour for CNA care.
The facts that decided it
What the panel treated as outcome-determinative, and which side it favoured.
Applicant requires 18 hours per day of home healthcare provided by spouse as stipulated and medically necessary.
Favours Applicant prevailed
This fact supports the award of home healthcare hours and reimbursement rates to applicant's spouse.
Defendant agreed to pay rates equivalent to those paid to outside agencies for home healthcare services.
Favours Applicant prevailed
Supports the reasonableness of the reimbursement rates set for applicant's spouse.
From the decision · page 5Turning to defendant's contention that the WCJ erroneously set excessive and unreasonable rates of reimbursement for the applicant's services, we concur with the reasoning of the WCJ as set forth the Opinion on Decision: The services provided by the applicant are akin to those of an independent contractor; and, inasmuch as the rates of reimbursement defendant is to pay her are substantially equal to those it would pay a third party health care services provider, we are unable to discern merit to the argument that the rates are excessive or unreasonable. (Opinion on Decision, p. 9.)
No evidence defendant showed that spouse provided similar services prior to injury to justify rate reduction.
Favours Applicant prevailed
Defendant's argument to reduce reimbursement rates lacked evidentiary support.
From the decision · page 11Defendant cites to Labor Code § 5307.8 and argues the applicant is being reimbursed for services regularly performed in the same manner and to the same degree prior to the date of injury. However, defendant offers no substantive evidence on this point. The issue was not raised with specificity at trial. Defendant did not obtain the deposition testimony of the applicant, or call her to testify at trial. The record does not describe what household services, if any, the applicant provided prior to the applicant's injuries. As such, the record does not support defendant's position that the applicant provided these types of LVN or CNA services, or ancillary activities of daily living, in the same manner and to the same degree as before the applicant's injuries.
What the panel did with the medical opinions
The role the physician served, and the weight the opinion carried. Physicians are named here as the decision names them; we do not score them.
Applicant needs LVN level care 8 hours per day and CNA level care 10 hours per day, seven days a week.
The February 15, 2020 report of Dr. Bertoldi found the applicant to be in need of LVN and CNA level care for specified hours daily.
From the decision · page 8Applicant's primary treating physician is Roger Bertoldi, M.D. The February 15, 2020 report of Dr. Bertoldi found the applicant to be in need of "LVN level care, 8 hours per day, seven days a week and CNA level care 10 hours per day, seven days per week."1
Testified regarding healthcare services market rates for home healthcare.
Testified about market rates for home healthcare services, supporting the rates set by the WCJ.
From the decision · page 3Applicant's health care services market expert, David Orlowsky, Ph.D., testified that he
The rules the panel named
Authorities as the decision cited them, with how this panel applied each one.
California Labor Code
Labor Code § 5307.8
Defendant argued that reimbursement should be reduced for services provided by spouse that were performed prior to injury, but no evidence supported this claim.
From the decision · page 11Defendant cites to Labor Code § 5307.8 and argues the applicant is being reimbursed for services regularly performed in the same manner and to the same degree prior to the date of injury. However, defendant offers no substantive evidence on this point. The issue was not raised with specificity at trial. Defendant did not obtain the deposition testimony of the applicant, or call her to testify at trial. The record does not describe what household services, if any, the applicant provided prior to the applicant's injuries. As such, the record does not support defendant's position that the applicant provided these types of LVN or CNA services, or ancillary activities of daily living, in the same manner and to the same degree as before the applicant's injuries.
What proof carried it
The evidence the panel weighed, by kind.
stipulation that applicant requires 18 hours per day of home healthcare provided by spouse
testimony of claims examiner David Wahe that no improvement in applicant's condition warrants reduction in home healthcare hours
agreement for provision of medical services dated March 9, 2020, authorizing 8 hours/day LVN and 10 hours/day CNA care
The same issues, filtered across the whole corpus — or paste your own facts and let the search rank by factor match.
About this page
- A published decision of the California Workers' Compensation Appeals Board, taken apart by what it turned on. The Board publishes the decision itself; this page adds the extraction and quotes the passage behind every claim.
- The injured worker is not named here, and the case caption is not printed. Physicians appear as the decision names them, because a medical opinion is an act in a public proceeding.
- Issues, outcomes and weights were extracted by AI and released only where the source passage checked. Read the official decision before relying on anything here. Not legal advice.
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