WCAB Disapproves Brasher Decision for Second Opinions

Tuesday, November 24, 2009 | 0

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By Richard M. "Jake" Jacobsmeyer

The WCAB has issued an en banc decision which substantially disapproves of and reverses its prior decision in Brasher v. Nationwide Studio Fund (2006) 71 Cal.Comp.Cases 1282 regarding objections to treating physician’s request for Spinal Surgery pursuant to Labor Code § 4062(b).

In Cervantes v El Aquila Food Products & CIGA, the WCAB has provided new guidelines for objections to spinal surgery and obtaining a second surgical opinion with the burden falling entirely on the defendant to initiate the objection process. In its Brasher decision, the WCAB had held the defendant could either, (a) complete utilization review of the request for surgery in a timely basis and the applicant then had the burden of making the request for a second surgical opinion, or (b) bypass UR and make a timely request for a second surgical opinion.

The Supreme Court decision in the Sandhagen case had seemed, at least indirectly to eliminate the second option with its language of the mandatory UR process. However, Sandhagen had not directly addressed the issues in Labor Code § 4062(b).

The factual outline of the en banc decision is instructive for not only the process for Labor Code § 4062(b) but also has some nuggets regarding the entire UR process also.

In Cervantes, the applicant was the beneficiary of an award of medical case. He came under the care of his spinal surgeon, Dr. Dureza. In a report of January 16, the doctor reported:

“…I do feel somewhat confident that the patient would benefit from surgery … Therefore, I am requesting L4-L5 and L5-S1 posterior lumbar interbody fusion with pedicle screw fixation and extensive decompression by a Gill Procedure. … Authorization should be forthcoming in order to prevent further neurological and musculoskeletal deterioration.”

However, the Jan. 16, 2009 narrative report did not clearly state at the top that Dr. Dureza was requesting authorization for surgery. On Feb. 25, the doctor sent another report which was clearly marked at the top “WRITTEN REQUEST FOR SURGERY AUTHORIZATION”. Defendant obtained a timely UR report denying the request for surgery on March 4. Neither party submitted a request for a second surgical opinion.

At trial Applicant Attorney argued the January 16 report was a request for surgery and defendant failed to timely deny the request.  Defendant argued the report was not a “Request for Authorization” as it did not comply with ADR 9792.6(o) which requires a request for authorization in a written report format to specifically indicate at the top of page 1 that it was a request for authorization.  Defendant argued applicant was obligated pursuant to Brasher to initiate the second surgical opinion process and was not entitled to a hearing on the issue failing completion of that step.

The trial judge essentially ducked all of the procedural issues raised by the parties and ruled the primary treating physician's report was more persuasive than the report of the UR doctor and awarded surgery. Defendant appealed, raising both the procedural argument and that Dureza's report was not substantial evidence.

The WCAB granted reconsideration in order to review the matter en banc. The decision carefully reviews the purpose of UR, the dictates of the Sandhagen decision and finally re-reviews the statutory language in order to consider whether the prior holding in Brasher was supportable. The Board concluded its prior Significant Panel Decision in that case did not correctly implement the procedures for the second surgical opinion process.

The WCAB’s decision in Cervantes provides a very clear, and very narrow, roadmap for the process of objection to the request for a spinal surgery. The Board held:

“…(1) when a treating physician recommends spinal surgery, a defendant must undertake utilization review (UR);
(2) if UR approves the requested spinal surgery, or if the defendant fails to timely complete UR, the defendant must authorize the surgery;
(3) if UR denies the spinal surgery request, the defendant may object under section 4062(b), but any objection must comply with AD Rule 9788.1 and use the form required by AD Rule 9788.11;
(4) the defendant must complete its UR process within 10 days of its receipt of the treating physician’s report, which must comply with AD Rule 9792.6(o), and, if UR denies the requested surgery, any section 4062(b) objection must be made within that same 10-day period; and
(5) if the defendant fails to meet the 10-day timelines or comply with AD Rules 9788.1 and 9788.11, the defendant loses its right to a second opinion report and it must authorize the spinal surgery.

The WCAB emphasized the very tight time frames for defendants to complete this process and the necessity to authorize surgery if any of the time frames were missed. The decision is also clear the defendant has the burden of being the driving force to complete the UR process and the second surgical opinion request, in the order. The Board also makes it clear if UR approves the request for surgery, the issue is decided. Defendant does not have the right to either initiate the second surgical process without completing UR, or use the second surgical process to challenge a UR approval.

A Useful Nugget

Not all of the holdings in this decision are adverse to defendants. The WCAB provided some strong support for interpretation of some of the UR regulations that are beneficial to defendants, especially the significance of ADR 9792.6(o) (Request for Authorization definition).

The WCAB determined the Jan. 16 report of the primary treating physician did not meet ADR 9792.6(o)’s requirements for a “Request for Authorization” and therefore did not trigger defendant’s obligation to initiate the UR process:

“Although we hold that a defendant must both complete its UR and make any section 4062(b) objection within 10 days of receipt of the treating physician’s report recommending spinal surgery, we further hold that these 10-day timelines are triggered only by a treating physician’s report that complies with AD Rule 9792.6(o).

AD Rule 9792.6(o) provides:

“'equest for authorization’ means a written confirmation of an oral request for a specific course of proposed medical treatment pursuant to Labor Code section 4610(h) or a written request for a specific course of proposed medical treatment. An oral request for authorization must be followed by a written confirmation of the request within seventy-two (72) hours. Both the written confirmation of an oral request and the written request must be set forth on the ‘Doctor’s First Report of Occupational Injury or Illness,’ Form DLSR 5021, section 14006, or on the Primary Treating Physician Progress Report, DWC Form PR-2, as contained in section 9785.2, or in narrative form containing the same information required in the PR-2 form. If a narrative format is used, the document shall be clearly marked at the top that it is a request for authorization.”

Therefore, if a treating physician seeks authorization for spinal surgery through a narrative report, the narrative report must clearly state at the top that authorization for spinal surgery is being requested.[2]

Rule 9792.6(o) is part of the “Utilization Review Standards” adopted by the Administrative Director.  It implicitly recognizes that claims adjusters routinely receive numerous medical reports from treating physicians. Therefore, if in a spinal surgery case a particular report might trigger the 10-day deadlines for a defendant to both complete UR and make a section 4062(b) objection, then the defendant should be given clear notice that authorization for spinal surgery is being requested”

This holding should apply equally to other requests for authorization where the time frame for review is even shorter than in second opinion spinal surgery cases (5 working days instead of 10 calendar days).
In trainings I have provided for many clients, I have always emphasized the need to be aware of the specific definition of a request for authorization.

All too often we see Applicant Attorney filing requests for Expedited Hearing on medical care issues claiming defendants have not timely completed UR. Most of those arguments should fail as the overwhelming numbers of requests that are received by a claims or UR organization do not meet the criterion under ADR 9792.6(o) to trigger UR. Defendants therefore are not obligated to conduct UR and the time frames do not apply.

It is never my recommendation to hold up authorizing or reviewing medical care because the request came in on the wrong form and every effort should be made to timely respond to anything that even looks like a request for authorization for treatment. However, in the event an inadequate request is not addressed, defendant should not be forced to provide the treatment on the basis that UR was not timely completed. This is almost invariably an issue for defense attorneys and/or hearing representatives when they appear at the WCAB on such issues; not an basis for the adjuster to decide whether to submit some prescriptions slip to UR.

Disposition:

In this matter, because defendant relied upon the prior holding in Brasher, the WCAB remanded the case to the WCAB with defendant being allowed 10 days to issue its objection via the second surgical opinion process and obtain a second surgical opinion on the need for surgery.

It its decision the WCAB also expressly disapproved of its holding approximately 2 months ago in the recent case where the Court of Appeals has granted the applicant’s Petition for Writ of Review.  In Elliot v WCAB, the board had reversed a WCJ holding that the employer failed to complete the second surgical opinion process after denial of surgery by UR. The decision in Cervantes specifically notes even the participating commissioners in that case have reversed themselves to participate in this unanimous decision.

Commentary:

As much as I liked the WCAB’s decision in Brasher, I have always been uncomfortable with the WCAB imposition of the burden to initiate the second surgical procedure on applicant. The statutory scheme simply did not seem to require that step but did seem to place the burden on defendants. What the Board’s reversal shows is the difficulty sometimes in harmonizing statutes with overlapping applications but different intentions. This decision seems to follow the statutory process more closely.

Defendants are going to have to be very diligent in making certain that any request for a spinal surgery does not end up being authorized by default. I am certain most defense attorneys and astute claims personnel will recommend having the second surgical procedure paperwork filled out contemporaneously with submitting a request to surgery and making certain the time frames are not missed. Reliance on defense attorneys to initiate this step is going to be problematic as the rules for filing for a second surgical opinion require a declaration under penalty of perjury from a representative of the claims organization as to the date the request for surgery was received in order to make certain the second surgical opinion request is timely (within 10 days).

Richard M. “Jake” Jacobsmeyer is a partner with the firm of Shaw, Jacobsmeyer, Crain & Claffey.