Oldham v. Kizer

• Citation: 1 Cal.Rptr.2d 195,235 Cal.App.3d 1046
• Decision Date: 31 October 1991
• Docket Number: No. B047092,B047092
• Court: California Court of Appeals
• Parties: , 35 Soc.Sec.Rep.Ser. 366, 2 NDLR P 139 Gino OLDHAM, Plaintiff and Appellant, v. Kenneth W. KIZER, as Director, etc., Defendant and Respondent.

Page 195

1 Cal.Rptr.2d 195

235 Cal.App.3d 1046, 35 Soc.Sec.Rep.Ser. 366, 2 NDLR P 139

Gino OLDHAM, Plaintiff and Appellant, v. Kenneth W. KIZER, as Director, etc., Defendant and Respondent.

No. B047092.

Court of Appeal, Second District, Division 1, California.

Oct. 31, 1991.

[235 Cal.App.3d 1050] Joy Young Stephenson, North Hollywood, for plaintiff and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Anne S. Pressman, Supervising Deputy Atty. Gen., Lesley A. Sive and Carol P. Wallacker, Deputy Attys. Gen. for defendant and respondent.

SPENCER, Presiding Justice.

INTRODUCTION

Appellant Gino Oldham appeals from a judgment denying his petition for a writ of mandate to set aside respondent's decision denying him Medi-Cal benefits.

STATEMENT OF FACTS

On August 27, 1982, appellant was shot in the back and through the abdomen; the bullet traversed his colon, small bowel, pancreas, stomach and esophagus. Appellant underwent emergency surgery to repair the damage. He remained hospitalized until October 10, 1982. Details concerning appellant's injury, treatment and condition will be presented in the discussion portion of this opinion as they become necessary to the resolution of the issues.

On November 4, 1982, appellant applied for Medi-Cal benefits; the application was denied for failure to provide verification of income, social security number, identification and address. Appellant reapplied on November 29; a notice of action dated December 14 informed him he was entitled to receive Medi-Cal benefits as of November 1.

Appellant applied for retroactive Medi-Cal benefits for August through October, 1982 on September 16, 1983; a notice of action dated September 27 informed him his application was denied for failure to provide verification of income and failure to keep an appointment for an interview. On March 13, 1984, appellant's authorized representative (AR) wrote to the state Department of Social Services (DSS) requesting a fair hearing on appellant's eligibility for retroactive Medi-Cal benefits, and a hearing was scheduled for May 17, 1984.

The hearing was held before hearing officer James R. Sharp (ALJ I ¹). He issued Appellant's AR took the position appellant never received a notice of action denying his November 1982 application for retroactive benefits, the county took no action on his application despite repeated requests that it do so, there had been no denial of benefits so the 90-day limitation period had not begun to run and appellant's request for a fair hearing was not untimely. The AR stated that appellant had contacted his eligibility worker (EW) in February 1983 regarding retroactive benefits and was told he would have to wait for them. Appellant waited approximately two months, contacted the EW again and was told his application was still being processed. Appellant's health care provider also contacted the EW in April 1983 regarding retroactive benefits; the provider continued to contact the EW through September 1983, at which time it was told the EW thought the application for retroactive benefits would be denied. Appellant then attempted to see if his hospitalization costs for the retroactive period of August through October 1982 would be covered under the California Children Services Program, since he was a minor during that period, but benefits under that program were denied. Appellant never received a notice of action that his November 1982 application for retroactive Medi-Cal benefits had been denied.

his proposed decision on June 21, 1984, and the proposed decision was adopted by respondent on June 27. According to the decision, at the hearing the Los Angeles County Department of Public Social Services (county) indicated it could not locate appellant's case file. However, based on information supplied by appellant's AR, it presumed appellant did not meet the Disability Evaluation Division's (DED) criteria for retroactive benefits, since appellant did not receive retroactive benefits when he was approved for ongoing benefits in December 1982. Additionally, computer records indicated appellant's case was closed in approximately February 1983; the county therefore argued appellant knew or should have known by that date his application for retroactive benefits was denied. Since he had 90 days from that date to request a fair hearing challenging the denial of his request for retroactive benefits, his March 13, 1984 request was untimely and should be dismissed.

ALJ I found the county did not issue a notice of action denying appellant's November 1982 application for retroactive Medi-Cal coverage for August through October 1982 and, at least through September 1983, it led appellant to believe his application was undergoing a reevaluation process. Absent a notice of action, the 90-day period in which appellant could request a fair hearing did not commence until he knew or should have known of the county's action and was made aware of his right to a fair hearing. This did not occur until his AR fully apprised him of the situation in February 1984. Therefore, his March 13, 1984 request for a fair hearing was timely and the state hearing process retained jurisdiction to review the denial of appellant's November 1982 application for retroactive benefits.

ALJ I also found that in August through October 1982 appellant would not have been eligible for Medi-Cal benefits under the medically indigent (MI) program. Hence, any retroactive coverage would have to be under the medically needy (MN) program. However, no evidence was presented at the hearing as to whether appellant was disabled and entitled to benefits during the retroactive period under the MN program. Therefore, the county was ordered to attempt to locate appellant's case file and secure the DED's evaluation of appellant's disability status during the retroactive period or, if unsuccessful, to contact the DED and either obtain a copy of its earlier evaluation or obtain a new evaluation.

On September 12, 1984, the county issued a "Report of County Compliance with State Hearing Decision" indicating it was unable to comply with the decision at that time, in that appellant had failed to keep a scheduled appointment to complete a DED package to be used to determine his disability status. The county would comply with On November 3, 1984, appellant's AR wrote to the DSS requesting a new fair hearing on the denial of his application for retroactive benefits. A hearing originally was scheduled for March 28, 1985. However, it was cancelled on March 7 to allow for a full DED evaluation. A disability determination and transmittal dated September 24, 1985 states appellant was not disabled, in that "his impairments did not remain severe enough to preclude all work for 12 continuous months." According to the Disability Evaluation Analyst and the medical consultant who made the determination, appellant had a residual functional capacity for medium work. He previously had worked as a floor stripper and as a shipping and receiving clerk, both of which were defined as medium work. Appellant therefore had the residual functional capacity to return to his past work and could not be found to be disabled. A hearing was then scheduled for March 20, 1986.

the decision once appellant completed the package. A disability determination and transmittal dated September 19, 1984 states appellant was not disabled during the retroactive period; as the basis for the determination, it indicated that based on an interview with appellant, "further development will not be done."

The hearing officer at the second hearing, Mike Ossola (ALJ II), certified his proposed decision on April 7, 1986. He identified the issue to be resolved as whether the county correctly denied appellant's application for retroactive Medi-Cal benefits "because it has no record of claimant requesting such assistance when he applied for Medi-Cal and since the county cannot issue retroactive Medi-Cal benefits to cover medical expenses incurred more than one year prior to the request being received by the county." ALJ II also indicated an issue regarding appellant's eligibility to receive Medi-Cal benefits from January 1, 1983 to the present was not being resolved but was being referred back to the DED for a more complete disability evaluation; this issue was raised at the hearing. He noted appellant's Medi-Cal assistance ended December 31, 1982 "apparently due to the fact that he had been determined eligible under the Medically Indigent Adult [MIA] Program and the termination of that program January 1983."

ALJ II concluded in his proposed opinion that the county erred in denying appellant retroactive Medi-Cal benefits on the stated ground and appellant should be provided with such benefits. By law, when an application for Medi-Cal benefits is approved, the applicant is eligible to receive benefits for the three months prior to the application provided certain eligibility factors are met. Appellant was approved for Medi-Cal benefits as of November 1982 and was thus eligible for retroactive benefits for the preceding three months. The county claimed appellant never requested such retroactive benefits when he applied for Medi-Cal, but ALJ II found it was "not reasonable to accept the county's position that it had no knowledge of the claimant's need for retroactive benefits. Claimant had been shot and seriously wounded resulting in his need to apply for Medi-Cal. Claimant had just been released from the hospital prior to his applying for Medi-Cal; thus, the worker should have been aware of his need for retroactive assistance and properly advised him what was required to apply for such retroactive assistance." Since the county should have but erroneously failed to do this, it was required to correct its error and issue the retroactive benefits.

On April 28, 1986, Alfonso Granda, Chief of State Hearings/MPI, Eligibility Policy Section of the Medi-Cal Policy Division wrote to ...