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Political junkies love ads that highlight the machinations of politicians who reverse field.

You know, the ” I was against it before I was for it before I decided to oppose it” variety.

Sometimes the politician has truly seen the light in a thoughtful way. But sometimes naked hypocrisy is exposed.

As a lawyer I savor watching courts reverse field. While it can be sparked by a change in the political complexion of the court, more often it’s an exercise of intellectual integrity.

So it is in Cervantes v. El Aquila Food Products Inc, an en banc decision of the California Workers’ Compensation Appeals Board (2009). A link to the decision can be found below.

At issue is the “spinal surgery second opinion” procedure of California Labor Code 4062(b). That section is part of the 2004 comp reforms.

The drafting of the 2004 was not uniformly stellar, and procedures under the 04 reforms have been the subject of much appellate litigation.

The WCAB en banc decision in Cervantes reverses field, rejecting procedural interpretations set forth in an earlier significant panel decision, Deanna Brasher vs. Nationwide Studio Fund and SCIF (2006).

The WCAB notes in Cervantes that when a treating doctor requests spinal surgery in writing the employer must:
-undertake utilization review (as noted by the California Supreme Court in the Sandhagen case)
-authorize the surgery if UR approves the surgery
-or authorize the surgery if UR is not done in a timely fashion

But what happens if a timely utilization review is done and UR disapproves of the surgery? Can the employer stand on its UR denial?
Must the injured worker then pick up the ball, requesting a spinal second opinion?

No.

Even if a timely UR review has refused to certify the requested spinal surgery, the employer/insurer must request a spinal second opinion under 4062(b).

Given the utilization review timeframe and the 10 day objection timeframe under 4062(b), the employer/insurer essentially must do a concurrent 4062(b) objection within the time it is doing its UR review.

The en banc opinion in Cervantes notes the following:
“We are cognizant that section 4610(g)(5) allows the deadlines of section 4610(g0(1) to be exceeded in some circumstances. Nevertheless, for the reasons above, we construe the statutory scheme to mean that, in spinal surgery cases only, the UR determination always must be made within 10 days of receipt of the treating physician’s report, so that the defendant may still timely object under section 4062(b) if there is a UR denial.”

In the Cervantes case, a timely UR review rejected the spinal surgery request. But Mr. Cervantes’ employer failed to initiate a spinal surgery second opinion objection. The Brasher case had held that it was the worker’s responsibility to file a timely request for a second spinal opinion.

That’s no longer required of workers.

Employers will probably be unhappy with the strict time frames, but the WCAB has done an admirable job in reconciling somewhat complicated and overlapping procedural provisions.

Adjusters who want to preserve their denial options will need to track the time frames carefully to preserve their objections.

But a significant side issue in the case was the issue of whether the surgical request was properly formatted under California workers’ comp regulations. Those regs require that requests for authorization either be on specific forms (including the “PR-2”) or, under AD Rule 9792.6(o)
“If a narrative format is used, the document shall be clearly marked at the top that it is a request for authorization”. More on that in another post.

Cervantes is an important decision that will affect many workers who seek spinal surgery. It may be appealed, but if so I predict that it will be upheld.

Here’s the decision in pdf format:
http://www.dir.ca.gov/wcab/EnBancdecisi … cedures%20(11-19-09%20final%20draft).pdf

Stay tuned.

Julius Young
www.boxerlaw.com

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Category: Medical treatment under WC

Julius Young

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