The New 4062, or

Sunday, February 1, 2004 | 0

The 2003 reform bills drastically changed the dispute resolution process when the Primary Treating Physician (PTP) recommends surgery to the back or neck, and contains certain hazards for the claims examiner not careful with the available choices, in addition to many unanswered questions that will no doubt become the subject of future litigation and appellate review.

SB 228 repealed the old Labor Code section 4062, and replaced it with a new version (this was not a simple amendment, but an enactment of an entirely new section). The most significant change was the implementation of an entirely new process for resolving disputes concerning spinal surgery.

4062 now provides that an employer may object to a medical report recommending spinal surgery within 10 days of receipt of the report. The rights of the parties are different depending on whether the injured worker is represented by an attorney (and whether an agreement is reached for an independent opinion) or not represented.

Obviously, efficient mail room operations and prompt attention to the daily mail is of high priority. However, 4062 raises a bit of a gamble, because you may not have any control over who the consulting physician will be. Claims departments will no doubt establish appropriate protocol on when to challenge surgical requests as a result.

A large part of the decision making process will be determined by whether the injured worker is represented by an attorney, and whether the attorney is one that you can get along with to choose reviewing physicians.

Assuming that you have timely objected to the recommendation for spinal surgery, and the injured worker is represented, then you and the attorney have 10 days to come to some agreement on a California licensed board-certified (or eligible) orthopedic surgeon or neurosurgeon for a second opinion. The code provides that the time dead-line may be extended by agreement of the parties.

If you and the attorney cannot agree, then you are subject to the same fate as though the injured worker were not represented - the big gamble.

If the injured worker is not represented, then the oft quoted Dirty Harry axiom to a thug staring down the barrel of his .44 caliber Smith & Wesson, "Do I feel lucky", comes into play. There is no room for wiggle or plea for mercy under the new 4062, as the code section mandates ("shall") the Administrative Director to "randomly" appoint an orthopedic surgeon or neurosurgeon.

Pundits who have reviewed the section have expressed grave reservation that much good will come of the random selection process for the defense - the code section specifies the use of either an orthopedic surgeon or nuerosurgeon. What do surgeons do? Perform surgery&

Thus, the choice of contesting a surgical recommendation where the injured worker is unrepresented (or where you and applicant's counsel cannot agree on a physician) carries with it considerable risk.

Regardless of whether an agreement is reached, if the second opinion recommends surgery then the carrier is mandated to provide it (again, the statute uses "shall").

But, if the second opinion does not recommend surgery (and it is unclear whether this means presently, at some later point in time, or never...) then it is the carrier's duty to file a Declaration of Readiness. The statute is silent as to the consequence for failing to file the DOR, but we can assume that such failure will subject the carrier to penalties under LC 5813 for delaying bad faith tactics or actions, since the code is clear on the need to file.

The second opinion report must issue within 45 days of the physician's receipt of the original report that recommended surgery. The statute is silent as to the consequences of a failure by the second opinion physician to follow this time line. Presumably there would be valid objection to the payment of the second opinion physician's bill. However, does this also mean that the time to get to a new second opinion doctor starts all over again? Does the original second opinion physician's report, when finally received, have any evidentiary weight?

Perhaps more troublesome in this new section is what do the parties do if the second opinion does not recommend surgery. What is supposed to happen at the Board following the mandatory filing of a DOR? Is there a full evidentiary hearing? Does the judge order surgery? And if so, with whom?

Certainly these questions will ultimately be answered via promulgated regulations implementing the new 4062, or case law, or both. Presently, though, 4062 carries with it substantial risk for all parties except orthopedic surgeons and neurosurgeons positioned and ready to take on these cases.

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