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Sheena Harrison

Wife of injured California worker can't be paid for home care: Ruling

June 13, 2014 - 2:46pm

California Workers Comp Ruling


An injured California worker can't receive payment for home health care provided to him by his wife, partly because the pair did not provide a detailed bill of services that were needed and provided after the worker's accident, the California Workers' Compensation Appeals Board said in an en banc ruling Thursday.

Roque Neri Hernandez's dominant right hand was severelycrushed in July 2011 while working as a machine operator for Geneva Staffing Inc., court records show. Mr. Hernandez has had five surgeries on his hand to date, and a medical evaluator noted in court filings that Mr. Hernandez “essentially lost all use of the right upper extremity.”

Mr. Hernandez was being cared for at home by his wife, Adrianna Bayona, records show. Mr. Hernandez's treating physician submitted a request to Geneva in November 2011 asking that Ms. Bayona be authorized as an in-home care provider for Mr. Hernandez.

Court records note that Ms. Bayona was laid off from her job as a teacher's assistant at a daycare center because she missed time from work to care for her injured husband. She spends six to eight hours a day caring for Mr. Hernandez, including bathing him, preparing meals and translating English in medical settings for her husband, who does not speak English.

A California workers comp judge ruled in May 2013 that Mr. Hernandez was entitled to payment for “self-procured medical care” as of August 2011, records show. The award, which was based on Ms. Bayona's previous hourly rate at the daycare center, included payment for 24/7 care between August 2011 and November 2012, as well as payment for 42 hours of care per week between November 2012 and the award date.

Geneva appealed, arguing in filings that there was not substantial medical evidence to support the home health care service award and that Mr. Hernandez did not have a proper prescription for such services. The California workers comp appeals board rescinded the award in August 2013 but later agreed to reconsider the case en banc.

The en banc appeals board unanimously ruled Thursday that Mr. Hernandez was not due payment for home health care services provided by his wife. In its ruling, the board noted that S.B. 863, a California workers comp reform bill passed in 2012, allows home health care to be compensable when a claimant has a doctor's prescription for such care and when the provider produces evidence of services that were needed and provided by the claimant.

The board found that the note from Mr. Hernandez's doctor to Geneva served as a prescription under California law. However, the board said that Mr. Hernandez and Ms. Bayona failed to provide “detailed evidence of what services were actually needed and what services applicant's spouse actually performed before and after the injury.”

Additionally, the board said the workers comp judge was incorrect to award payment based on Ms. Bayonna's previous employment at the daycare center, rather than at a rate for comparable home health care aides.

The case was remanded to a California workers comp judge for further proceedings.

 



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