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Keyword: ‘nurse case manager’

Helllloooo Nurse (Case Manager)!

A nurse case manager assists applicants in administering their benefits, particularly medical benefits.  This service involves scheduling appointments, coordinating transportation, and speaking with treating physicians about the nature and extent of care, often informing the party stuck with the bill, the self-insured employer or insurance company, of what’s going on.

This service is paid for by the party liable for the future medical treatment, and is one of the recognized forms of “treatment” under Labor Code § 4600, if it is “reasonably required to cure or relieve the injured worker from the effects of his or her injury.”

Bear in mind, unlike a typical nurse, a Nurse Case Manager does not provide actual treatment.  This job generally entails providing some sort of realistic anchor in speaking with the treating physicians and keeping the insurer/employer appraised of the situation.  This way, doctors are not swayed into recommending elbow surgery under a lower extremity medical award.

But who gets to choose the Nurse Case Manager, if one is to be provided?  California Workers’ Compensation law provides that an employee may choose his or her own treating physician.  (Labor Code § 4601).  Even with the Medical Provider Network limitations of Labor Code § 4616, the employee still has his or her choice of physician within the network.

As for the Qualified Medical Evaluator, the panel process outlined in Labor Code § 4062.2 controls that choice, with each party striking one of three panel physicians until there is only one left standing.  Yet the law is relatively silent as to who gets to choose the Nurse Case Manager.

Whoever controls the Nurse Case Manager controls the flow of information to the insurer and the treating physician (some of it at least).  Understandably, there is something at stake here.

In the case of Lamin v. City of Los Angeles (2004), the Workers’ Compensation Appeals Board addressed this issue, and, having procured a magician’s hat and wand, mystically waved the latter and pulled the following “preferred” process from the former:

1)      The defendant is to appoint a nurse case manager;

2)      If the applicant objects, the parties are to try to reach an agreement and appoint an “Agreed Nurse Case Manager”; and

3)      If no agreement can be reached, the Workers’ Compensation Judge is to appoint a Nurse Case Manager, considering each candidate’s (a) training, experience, qualifications, skills, and effectiveness; (b) potential conflict of interest; and (c) the recommendations of the treating physician.

It’s hard not to be cynical as a workers’ compensation defense attorney, and I’m trying my best, but the defendant is to have no control at all over this treatment?  A nurse case manager is supposed to be a professional and impartial observer, making sure the treating physicians get the actual facts and the insurer doesn’t get robbed.

Next, the applicant will demand to choose his own transportation company, his own adjusters, and (eventually) his own defense attorneys to deal with (exaggeration, I know).

The waters have been fairly calm on this issue of late, but sooner or later this issue will come forward again and hopefully we’ll get a different decision on appeal.   Have you ever had an applicant demand his or her choice in Nurse Case Manager?  Let me know:  gregory.grinberg@htklaw.com

Categories: Nurse Case Manager

The Life of the Wife – Profiting from Comp. Strife

July 27, 2012 1 comment

A recent panel decision has ruled that an injured worker entitled to in-home care treatment can “hire” his wife to provide the care, at the expense of the employer.  In the case of Ignacio Gomez v. Premium Roof Services, Inc., the panel ruled that workers’ compensation Judges do indeed have authority to order an employer/insurer to stop providing in-home care with some agency or another, and instead to pay an applicant’s wife to perform the acts instead.

If the facts sound similar, it is because you are a well-read and well-informed visitor to this most humble of blogs, and have probably seen this post on an insurer being forced to provide employment to an applicant’s illegal immigrant wife as the person providing his in-home care.

Applicant was receiving 10-12 hours of in-home care every week in accordance with the recommendations of an Agreed Medical Evaluator.  However, the agency hired by the insurer in this case proved “inadequate” to applicant’s tastes.  He made the claim that on the rare occasions when the in-home care staff would show up for duty, they would not do their job at all, let alone well.

So applicant petitioned to have this agency “fired” and his wife “hired” to provide the care instead.  Naturally, the defense objected, and with good reason.  Once applicant’s in-home care person is his wife, everything witnessed in the process of that care becomes privileged.  If applicant is faking his injury, his symptoms, or even his need for in-home care, how is the defense to prove it?  While testimony from in-home care staff might work in general, a defendant cannot compel an applicant’s wife to testify.

The reasoning given by the Workers’ Compensation Appeals Board includes the analogy comparing in-home care to a treating physician, noting that, at least with a treating physician, “[a] … relationship which will inspire confidence in the patient is an ingredient aiding in the success of the treatment.”  (citing Zeeb v. Workmen’s Comp. App. Bd.).

But surely in-home care is of a different nature of relationship than a physician.  Trusting someone with the future of one’s health, recovery, and ability to earn a living and enjoy life is not the same as trusting someone to perform in-home care tasks.  In the former, the patient relies on the years of training and experience elegantly concealed by a white coat and a smile.  In the later, applicant can readily supervise the work and see that it is to his satisfaction.

In any case, the remedy here should have been another agency, not applicant’s wife.  If the applicant has a complaint against the next agency, he can have the defendant replace them with a third or a fourth, so long as he documents properly his complaints.  After all, Nurse Case Managers are selected in a similar fashion.

Categories: Uncategorized