Gardening Services are Medical Treatment ? Don't Think So!

Are pool, housekeeping and gardening services, when "prescribed" by a physician, medical treatment?

The majority in a California Workers' Compensation Appeals Board panel said that such a prescription was not medical treatment and thus the carrier was not required to send the prescription to utilization review, thereby denying the injured worker a penalty and attorney's fees on the issue.

The matter has been appealed to the 2nd District Court of Appeals for review.

Prior case law has found that such recommendations by physicians could be deemed medical treatment and that each such request would need to be determined on a case by case basis.

In the case at hand the WCAB panel majority found that the request for pool, housekeeping and gardening services, though recommended by the primary treating physician and an agreed medical examiner, were not supported by substantial evidence.

"It is not clear how or why Dr. Nagelberg or Dr. Alban arrived at the conclusion that housekeeping, gardening and pool services are medical care or how and why these services are reasonable and necessary on an industrial basis. In addition, their reports fail to offer analysis as to whether applicant ever performed these activities prior to his injury, whether the activities in question are activities of daily living, whether performance of the activities would have serious or long term effects on the applicant's medical condition, and the reasonableness of these services in light of the scope of medical treatment and its defined goals."

I don't have a prediction for how the 2nd District will rule on the case, if it even grants review.

But I have a bias, and I'm sure I will be castigated for what I'm about to state - I have a real problem finding that pool, housekeeping and gardening services are "medical treatment" that the workers' compensation system should be paying for.

The legal test is whether such services are "medically necessary and reasonable." This is where the legal fiction goes astray and jumps from the reality ship.

I empathize with the poor injured worker who can no longer clean his or her pool, or can no longer vacuum the house, or no longer mow the lawn. But those are DISABILITY problems. They are not questions of medical treatment.

Dr. Nagelberg's report in the case at question states, according to the WCAB Panel opinion, that "The patient requires housekeeping assistance 4 hours per day, 3 days per week for an indefinite period of time. The patient also requires pool man [sic] one time a week and gardening one time a week."

Dr. Alban said, in addition to continuing with physical therapy, that, "if [claimant's wife] is no longer able to help in the household, he will need a household helper approximately once per week for at least four hours. He also indicates that he has a small garden and does employ a gardener once per week for an hour to two hours, since he surely cannot do any heavy gardening except for occasional sprinkling. He cannot do bending, stooping, kneeling, or lifting from ground level more than an occasional two to three pounds. He has a swimming pool but indicates that the expense at heating it is a problem. Having a warm pool to exercise in would surely be advantageous and he is encouraged to perform general exercises..."

This is an injured worker who sustained an injury in 1996 and was awarded PD of 77% in 2006 for back, knees and gastrointestinal system. Mechanism of injury is not indicated in the opinion, but there were two cases, a specific injury of 9/24/1996 and a CT March 1970 - 11/27/96.

Granted, the facts of the case indicate significant disability. The recommendations for pool, housekeeping and gardening services reflect that. But the panel made the correct decision in this case. The physicians fail to describe how paying for outside home maintenance services, services for which we have no idea for how long they have been employed, whether before or after injury, or for whether these are activities that the injured worker engaged in prior to and/or after injury, are medical treatment.

The physicians fail to describe how paying for pool, housekeeping and gardening services are medically necessary, and more importantly reasonable.

Just a couple of posts ago I castigated the WCAB for waiting 6 years to tell an injured worker that his petition for reopening was filed at the wrong venue, and then not taking affirmative action to correct the procedural error.

But in this case the WCAB did the right thing by denying pool, housekeeping and gardening services. There was no evidence cited in the opinion that made the need for these services any different than procuring them on a non-medical basis.

This is the kind of case that critics of workers' compensation point to as exemplary of a system run amok by unreasonableness. It is a court opinion that proponents of comp can point to as evidence that there are good checks and balances in the system, albeit at an price...