Second Surgical Opinion Process Clarified By WCAB

Saturday, September 9, 2006 | 0

By Jake Jacobsmeyer

The Workers' Compensation Appeal Board published a "Significant Panel Decision" (1) that significantly clarifies the process for objecting to requests for spinal surgery and provided alternate procedures for defendants to follow to object to such requests for surgery.

In Brasher v. Nationwide Studio Fund and SCIF, the defendant received a request for spinal surgery and initiated utilization review which denied the requested procedure. Defendant then filed an objection to the spinal surgery with the administrative director. Both utilization review and the request were performed on a timely basis. The AD's office denied the defendants request for surgery advising a second opinion was not appropriate until the treating physician made a second request for the procedure after UR denied the first request. The PTP issued such a report and defendant filed the objection again. A second surgical opinion was appointed by the results of the opinion were not included in the case.

In the meantime, applicant filed a request for expedited hearing to obtain an order compelling the spinal surgery to proceed arguing that the requirement of the AD's office for a second request and objection by defendant was improper. Applicant further argued that since the second surgical opinion was not available within the 45 days provided by statute. At trial the WCJ ordered the second surgical opinion process to proceed and denied the surgery request without prejudice upon completion of the second surgery process.

Applicant appealed. The petition for reconsideration was granted and the WCAB issued its opinion addressing the procedures that were to be followed in the event of a request for a spinal surgery as follows:

"... in response to a treating physician's recommendation for spinal surgery, an employer has the following options: 1) authorize the surgery, 2) object to the surgery, pursuant to section 4062(b), by filing a DWC Form 233 within 10 days of receipt of the doctor's recommendation, 3) submit the recommendation to utilization review, or 4) pursue both options 2 and 3, either simultaneously or by filing an objection after a utilization review denial, meeting the timelines for each process. If the employer denies the surgery pursuant to its utilization review, the employee must object within 10 days of receipt by the employee of the employer's denial. The dispute will then be resolved under the second opinion procedures in section 4062(b). " (emphasis added by this author)

This interpretation by the WCAB allows a defendant to pursue alternate remedies either individually or contemporaneously, either through Utilization Review or filing an objection under Labor Code Section 4062 utilizing Form 233 and the procedure in AD Rule 9788.1(a). If the defendant decides to proceed only with UR and then denies the request for surgery, then the employee is required to file an objection with the AD's office to seek the second surgical opinion. The WCAB also considered whether the employee is entitled to 20 days (as allowed under Labor Code Section4610) or the 10 days allowed under Labor Code Section4062(b) and held that the correct time period is set under Labor Code Section4062(b) and therefore is 10 days, the same time frame available to defendants.

The WCAB noted that the AD devised a form for defendants to seek a second surgical opinion but no such form existed for applicants but did not consider that to be an impediment to making the request. The WCAB also made it clear that the AD's office did not act correctly in requiring the employee to submit a second request for spinal surgery after denial by UR. Commissioner Rabine issued a concurring option that was critical of the AD's memo as being an "underground regulation" by providing a procedure that was not in either the statutes or regulations that addressed this topic. Citing the WCAB's decision in Milbauer, it was his opinion that the procedure outlined in the memo was void on its face as it had not gone through the approval process required for regulations.

This decision provides some surprises in the WCAB's interpretation of these sections. The board made it clear that defendants have two alternate procedures to object to surgery in effect that Labor Code Section 4062(b) and Labor Code Section 4610 are alternate procedures which can be invoked separately or simultaneously. Completion of UR is not a pre-requisite to issuing an objection under Labor Code Section 4062(b) as many of us had thought. Additionally, if UR is used only, then the burden shifts to the applicant to make the objection and request a second surgical opinion within 10 days of the UR decision receipt by the employee and failure to make that request on a timely basis is a waiver of the right to request surgery. If the employee fails to follow the procedures under Labor Code Section 4062(b) to object to the UR decision denying surgery, presumably a request for expedited hearing is not an available remedy either.

This decision should be carefully reviewed by claims administrators for development of procedures consistent with the decision and development of a company policy to decide which remedies will be followed in specific situations.

A copy of the decision can be located by clicking on the case name to the right.

Footnote

(1) The WCAB website identifies "Significant Panel Decisions" as "Cases that are identified for dissemination by the WCAB in order to address new or recurring issues of importance to the workers' compensation community. Significant Panel Decisions have been reviewed by each of the commissioners, who agree that the decision merits general dissemination."

Attorney Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain & Claffey and can be reached at jakejacobsmeyer@shawlaw.org.

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