What the panel treated as outcome-determinative, and which side it favoured.
Dr. Kramer's March 2, 2022 RFA documented a change in material facts since the October 22, 2021 UR decision, including worsening balance and cognitive issues.
Favours Applicant prevailed
This supported the Board's finding that the further recommendation for LVN care was not barred by Rule 9792.9.1(h) and was medically necessary.
From the decision · page 3The March 2, 2022 RFA (with progress report) states:...
Patient continues to be very forgetful. She remains very clumsy and prone to falling.
This patient has already been found to be totally disabled due to her fibromyalgia,
central nervous system, psychological, neck, shoulder and musculature injuries
from work. The patient's husband is not able to provide around the clock
assistance to his wife as it has had a devastating impact on his work and
therefore livelihood. Without his assistance because of her serious cognitive
impairment, dizziness, balance issues, risk of falling and daily need for
medication management, the patient will be in imminent risk of harm.
Therefore, her requested care should be processed in an expedited manner....
The patient's main complaints/issues are as follows:
1) Vertigo and overall Poor Balance. "I had a fall last week and hurt my Left
wrist! I asked the Ortho MD who evaluated me last week but was told to go to get
The October 22, 2021 UR decision denied housekeeping but did not deny CNA care, so Rule 9792.9.1(h) did not bar the March 2, 2022 RFA for CNA care.
Favours Applicant prevailed
This allowed the Board to find the CNA care request was not barred and could be considered on the merits.
From the decision · page 6The October 21, 2021 UR decision states:
The request for home health care is not appropriate for this claimant. Guidelines do
not support domestic care services when there is no skilled home health services
being provided. In this case[] housekeeping is being requested, which is not
supported by guideline recommendations. Based on the clinical history and
guideline recommendations, the prospective request for 168 home health care visits
to include housekeeping (8 hours/day, 7 days/week, for 6 months) is non-certified.
(Ex. 33, Utilization Review, October 22, 2021, p. 2 [Emphasis added].)
Here, the October 21, 2021 UR decision denied "housekeeping" and, in doing so, did not
modify, delay, or deny a request for CNA care. It follows that had the RFA actually requested
CNA care, Rule 9792.9.1(h) still would not apply as a bar to such care.
Dr. Kramer explained the need for 24-hour care based on the applicant's husband's unavailability to provide assistance, supporting the amount of care requested.
Favours Applicant prevailed
This supported the Board's finding that the requested care was supported by substantial medical evidence.
From the decision · page 7However, the medical reporting reveals that Dr. Kramer's request for twenty-four hours of
care, seven days per week, was based on his reasoning that applicant's husband would be unable
"to provide [the] around the clock assistance" required for applicant's ambulation and medication
management over the next six months. (Ex. 29, RFA Packet Consisting of Dr. Kramer 2/14/22
Progress Report, In-Home Health Assessment 2/17/22, Expedited Request 3/22, p. 3.) Therefore,
we conclude that Dr. Kramer's reporting adequately explains his reasoning. (E.L Yeager v.
Workers' Comp. Appeals Bd. (Gatten) (2006) 145 Cal.App.4th 922, 928 [71 Cal.Comp.Cases
1687] (stating that an expert medical opinion must be framed in terms of reasonable medical
probability, be based on an accurate history and an examination, and must set forth reasoning to
support the expert conclusions reached to constitute substantial medical evidence).) Accordingly,
we are unable to discern merit to defendant's contention that Dr. Kramer's requests lack substantial
medical evidence.