What's New in 2010

Friday, January 29, 2010 | 0

By Mullen & Filippi

January is not only the beginning of the calendar year, but is also when most legislation becomes effective. In this, our first edition of the Bulletin for 2010, we discuss a newly issued interpretation of Labor Code section 4062(b), new statutes and regulations, and a new manual for claims examiners offered by the Department of Industrial Relations. 

Clarifying The Rules For Evaluating Requests for Authorization for Spinal Surgery.

On Nov. 19, 2009, the WCAB issued an en banc decision in the case Cervantes v. El Aguila Food Products, clarifying the procedure for reviewing a doctor’s request for authorization for spinal surgery. Declaring the decision final, the Division of Workers’ Compensation issued a Newsline on Jan. 5, 2010 confirming that the procedure described in Cervantes must be followed.

The declaration that the Cervantes decision is final is a bit precipitate. The defendant in the case filed a Petition for Writ of Review with the Sixth District Court of Appeal on Jan. 4, 2010. Also, the First District Court of Appeal had already granted review in Elliott v. WCAB, a case addressing the same issue, and recently received briefs from the parties discussing the impact of the Cervantes decision. Nonetheless, unless and until the Courts of Appeal say otherwise,

Cervantes establishes the procedure we are all required to follow in reviewing a request for spinal surgery. One crucial point made by the Cervantes decision is that the entire process for reviewing a request for authorization for spinal surgery must be completed within ten days of receipt of the doctor’s request for authorization, with the exception of the second opinion report. The second opinion report must be issued within 45 days of the request for authorization. If the deadlines are not met, the surgery must be authorized. The Board acknowledged that this is a different and much shorter review period than for other medical treatment, but found that this procedure reflected the legislature’s intent to establish a fast track for reviewing spinal surgery requests.

The other crucial point to remember is that, once the request for authorization is made, the applicant has no obligation to do anything. All further steps must be taken by the defendant. If the defendant does not act, the applicant’s surgery must be authorized.

The required procedure is as follows:

(1) The treating doctor requests authorization for spinal surgery. This request must be either on a PR-2 report, or a Doctor’s First Report of Injury or Illness, or a narrative report which states at the top of the report that it is a request for authorization. The Board held that a narrative report which does not clearly state at the top that it is a request for authorization is not sufficient.

(2) Within ten days of receipt of this report by the employer/carrier, the request must be submitted to Utilization Review (UR), which must either authorize or deny authorization within the ten day period. If surgery is authorized, it must be provided. The UR doctor cannot extend the review period based on a determination that more information is needed. Instead, UR must deny authorization, as the Board found incomplete information is valid grounds for denial. If UR fails to issue a decision within the 10-day period, the surgery must be provided.

(3) If UR denies authorization, the employer/carrier must object to the denial, also within the ten day period. The objection must be made by a principal or employee of the employer, insurance carrier, or administrator, and must be on the form set out in 8 CCR 9788.11. The form is DWC Form 233, and you can download a copy of it from the DWC website, at the following address: http://www.dir.ca.gov/dwc/forms.html. 8 CCR 9788.1 sets out the requirements for completion and service of the form, and what documents must accompany it. The completed form, with required attachments, must be postmarked no later than the tenth day after receipt of the doctor’s request for authorization for surgery.

(4) After service of the objection, the defendant and a represented applicant may agree to an AME to perform the spine surgery second opinion report. The AME must be a Board certified orthopedic surgeon or neurosurgeon, and must be available to issue a report within 45 days of the initial request for authorization. Unless the administrative director has received notice that the parties have selected an AME, five working days after receiving the defendant’s objection, the Administrative Director will randomly select a physician to prepare the second opinion report.

The significance of the Cervantes decision is that it explains and confirms a procedure already found in the statutes and regulations, and resolves a dispute about whether the applicant or the defendant is responsible for pursuing a second opinion when UR denies authorization for spine surgery. Clearly, the Board wanted to emphasize that it is necessary to act immediately when a request for spine surgery is received if the defendant has any doubts about whether surgery should be authorized. As always, you can call your favorite Mullen & Filippi attorney if you have any questions about the Cervantes case or the procedure it mandates.

New Statutes and Regulations.  With limited exceptions, all statutes and regulations enacted during 2009 became effective on January 1, 2010. We discuss here a few of the new laws relevant to workers’ compensation which we believe are of particular interest to our clients.

There were two changes to the Labor Code regarding the defendant’s obligation to provide medical treatment. Labor Code section 4600(d), which permits an employee to select a personal physician as his or her primary treating physician for a work related injury, previously had a sunset clause, providing that the statute would expire on Dec. 31, 2009. The sunset clause has been removed, and the statute remains in effect with no expiration date.

A new section, Labor Code section 4610.3 was added. The new statute prohibits an employer from withdrawing authorization for treatment which was previously authorized and has been provided, even if the employer later determines that the doctor who provided the treatment was not eligible to treat the employee (for example, was not in the MPN). However, if a series of treatments were authorized, the employer retains the right to deny authorization for those treatments not yet provided.

The statute specifically states that it is not to be construed to expand or alter benefits available under an MPN, or to impact the employer’s ability to transfer treatment into an MPN. It is also not to be construed as establishing that the provider who provided the treatment is the primary treating physician. While not expressly stated in the statute, the purpose of this new law seems to be to make sure that doctors get paid for treatment that was authorized at the time it was provided.

There were also two regulatory changes of note which went into effect on Jan. 1, 2010. First, the medical fee schedule for Durable Medical Equipment, Prosthetics, Orthotics and Supplies has been revised to conform to changes in the Medicare payment system adopted by CMS for 2010. The order adopting the changes, with a link to the new fee schedule, can be found online at http://www.dir.ca.gov/dwc/OMFS9904.htm.

The other, very welcome, change is that the medical mileage rate has now been reduced to fifty cents per mile as of January 1, 2010. This new rate applies to all medical mileage traveled on or after Jan. 1, 2010.

A New Reference.
Finally, for anyone who needs help with keeping track of all of the many procedures, old and new, which govern workers’ compensation claims management, in December 2009, the Department of Industrial Relations issued a new Benefit Notice Instruction Manual for claims examiners. The manual includes sample notices, and guidance such as what information must be provided with each notice. You can find the new Manual on the Department’s website at http://www.dir.ca.gov/dwc/BenefitiNoticeManual/BenefitNoticeManual.pdf.

Mullen & Filippi is a defense law firm with offices in 11 California cities. This column was reprinted with the firm's permission from its quarterly newsletter.