The Nurse Case Manager: Is the Provision of a NCM Considered Part of Medical Treatment under Lab C 4600?

Regarding the WCAB’s Significant Panel Decision in Patterson v. The Oaks Farm/CIGA.


TheNurseCaseManagerBulletinInfoOn 7/24/2014, the WCAB issued a “Significant Panel Decision” in Patterson v. The Oaks Farm / CIGA.i While WCAB Significant Panel Decisions are not citable as actual authority and hence are not controlling, they are important nevertheless because they reflect the recognition of an important and general interest issue, for which there is little or no applicable case authority.

In this case, the defendants had previously authorized a Nurse Case Manager, (“NCM”) based upon the opinions of an AME, but then allegedly made a unilateral decision to terminate the NCM’s services, presumably without a then-existing factual basis featuring either a change in the applicant’s medical condition or some other circumstances. Applicant’s counsel then filed a DOR for Expedited Hearing.

The WCAB has made the following findings and opinion:

• The provision of a NCM is considered medical treatment under Lab C. 4600, which specifically refers to “nursing” within the stated definition of what is medical treatment. (But not distinctly to the services of an NCM)

• The Expedited Hearing process under Lab C. 5502(b)(1) is appropriate to the NCM issue, since the provision of a NCM is considered the entitlement to medical treatment.

• Once a NCM is authorized or provided, a defendant may not unilaterally terminate the services of the NCM, without demonstrating by evidence, either of a change in the employee’s medical condition or other change of circumstances.

• An RFA is not needed if the defendant has unilaterally terminated the NCM services, without good cause.

• An RFA may be needed, if the defendant has terminated services with good cause.


It seems as if the WCAB has determined that a NCM is both a “nurse” as well as a facilitator in the medical treatment “delivery” process. On the one hand, they deem the NCM is a nurse in the traditional definitional sense, since they cite the word “nursing” as one of the includable definitions of medical treatment, under Lab C 4600. But the WCAB also refers to the NCM as a facilitator of medical services, so that he or she also acts as part of the “delivery” of medical treatment. Within both aspects however, the WCAB very clearly believes that the NCM is covered under the definition of medical treatment. And to illustrate, they also refer to an excerpt from the American Case Management Association, as further proof that the NCM, among other things, “facilitates care along with a continuum through effective resource coordination,” and helps provide “access to care.”

Our practice experience has been that in the more difficult and complex medical cases, the NCM is a valuable, if not indispensable resource, for guiding, coordinating and just helping to facilitate the best delivery of medical care. Sometimes, the NCM is simply speaking with the doctors and their staff, trying to interpret some of the lack of clarity or merely trying to help coordinate medical appointments. At other times, the NCM may be conferencing with the doctors, in order to gain more understanding in what treatment is being provided. Or, the NCM may be counseling the applicant or merely trying to still fears and concerns, perhaps acting more in the role of a Social Worker.

What about the instances where the NCM may be an employee of the defendant or where the NCM may be present (live or on the phone) during sensitive conversations between defense counsel and the examiner? There is no case precedent here for which there is really no guidance. But, you can bet this subject will be garnering more attention from applicant attorneys. The point here is that not all NCM’s are functioning in the same capacity and I believe the WCAB in Patterson, used the “one size fits all” assumption that all NCM’s do the same thing. I disagree and I also maintain that in some instances, the NCM is really perhaps in a “dual” role, both as a facilitator of care but also acting as an extension of the defense. In such instances, the definition is not that simple and therefore there are decent arguments to support either position. Certainly, in a catastrophic case, a sound argument can be made that the NCM is an extension of the doctors who are actually providing treatment. But, in other cases, the NCM may be acting as more of an agent or an extension of the examiner, in order to generate cooperation and to help encourage the applicant to follow the advice of the physicians. So, the worn hats of a NCM are many and varied.

The problem starts with the appointment of an NCM. Once this occurs, the “genie is sort of now out of the bottle,” and the difficulty then arises when you want to either change the NCM resulting from a variety of reasons or you want to simply terminate the services entirely. Under Patterson, if the NCM is deemed medical treatment, then you should be very careful about making any decisions (other than to approve) which are going to trigger a reaction. We strongly urge you to take one position or the other, and then act consistently with that position. For now at least, the trending seems to be moving in favor of deeming the NCM as medical treatment.

The following chart is intended neither to be all-inclusive nor exhaustive, but it may illustrate some of the more common factual scenarios, which you are likely to encounter:
We have several cases right now, where the applicant’s attorney is demanding NCM’s and we expect to see a lot more of these demands, together with further demands to change NCM’s to “friendly selections” for the applicant.

iA Significant Panel Decision is essentially a WCAB Three Member Panel Decision, which has met additional criteria. The criteria are: (1) The Board believes the presenting issues are of general interest, particularly new or recurring issues for which there is little or no published case law; and (2) The decision is actually reviewed by the entire Board, which must agree that that the decision is significant and (3) the Board shall make a diligent effort to ensure that its significant panel decisions are thoroughly deliberated and carefully researched (Larch v. WCAB (1999) 64 CCC 1098)


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