Neri Hernandez and Proper Handling of Home Health Care Prescriptions

• Publication year: 2021
• Author: Bilal Kassem, Esq.

Neri Hernandez and Proper Handling of Home Health Care Prescriptions

Bilal Kassem, Esq.

Oakland, California

Home health care is a frequently litigated issue. Often, this is because the injured worker's urgent need for support at home is weighed against the claims administrator's need for clarity. The claims administrator usually wants to know exactly what it is they are being asked to approve; however, prescriptions are often missing pertinent information. In fact, communication is sometimes so unclear that the claims administrator might not even know they have received a prescription for home health care. So, what constitutes a prescription for home health care? What happens when it is unclear whether home health care is being requested? When circumstances are not clear, what duty does a claims administrator have to investigate, and when does that duty arise?

The WCAB en banc decision of Neri Hernandez v. Workforce Staffing (2014) 79 Cal.Comp.Cases 682 directly addressed these questions. In Neri Hernandez, the applicant sustained a crush injury to his hand while working as a machine operator. The applicant endured a significant hospital stay and underwent several surgeries. After his release from the hospital, his spouse cared for him at home. His treating physician, Dr. Lee, wrote the following handwritten note on November 11, 2011:

To Whom it may Concern,
This is to notify that Neri Hernandez Roque has been under the care of Dr. Charles K. Lee for severe injury to his right hand since 7-11-11 at which time he has needed constant care from his wife Adrianna Bayona.
Mr. Neri Hernandez will need continuous care as his ongoing treatment goes on.

On November 28, 2011, the applicant's attorney wrote to the defendant, demanding that they authorize the applicant's wife to provide home health services for the applicant. A copy of Dr. Lee's November 11, 2011, note was enclosed.

The defendant contested liability for home health care, so the parties appeared for an expedited hearing on the issue. The workers' compensation judge (WCJ) then issued his Findings and Award in favor of the applicant. The defendant sought reconsideration, after which the WCAB rescinded the WCJ's Findings and Award for further development of the record. Notwithstanding, the WCAB held that Dr. Lee's report was a prescription within the meaning of Labor Code section 4600(h). In doing so, the WCAB identified the proper test to determine liability for home health care services.

Labor Code section 4600(h), enacted by SB 863, states:

Home health care services shall be provided as medical treatment only if reasonably required to cure or relieve the injured employee from the effects of the employee's injury and prescribed by a physician and surgeon.... The employer is not

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