Objecting to Spinal Surgery for a Second Opinion
Sunday, May 22, 2005 | 0
One important aspect of SB 228 (Chapter 639, Statutes of 2003, effective January 1, 2004) was the amendment of LC 4062 to provide an expedited procedure allowing an employer to obtain a second opinion where the treating physician recommends spinal surgery. In this article, we will examine the procedure for obtaining the second opinion.
In addition to establishing a detailed procedure to question a spinal surgery recommendation, the rules are designed to disqualify a second opinion physician from serving in any matter where that physician has a "material familial affiliation", a "material financial affiliation" or a "material professional affiliation" with any party. For definitions of these terms, see LC 4062(c), ADR 9788.01.
The authorization for the procedure is found in LC 4062(b). The rules governing the procedure are set out in Title 8 of the California Administrative Code, sections 9708.11 et. seq., effective 12/15/04.
What is Spinal Surgery? ADR 9788.01(l)
Spinal surgery is defined as follows:
The CPT (American Medical Association's Physicians' Current Procedural Terminology (CPT) 1997, copyright 1996, American Medical Association.) codes as listed in rule 9788.01(l). In addition to the coded procedures, "spinal surgery" is further defined to include a nondiagnostic invasive procedure, not primarily analgesic in nature and/or any procedure which involves the introduction of energy, a foreign substance, or a device that destroys tissue in the spine or involves the implantation of devices into the spine and which is not primarily an analgesic procedure;
Acupuncture is specifically excluded from the definition.
Comment: It is recommended that the practitioner compare the CPT code of the requested procedure against this list to confirm that the case actually involves "spinal surgery."
When must you object? - LC 4062(b)
Within 10 days of receipt of the treating physician's report containing the recommendation. Note: The objection will be untimely unless it bears a postmark date no later than the tenth day after the date of receipt of the treating physician's report.
How do you object? - ADR 9788.1(a)
An objection to the treating physician's recommendation for spinal surgery shall be prepared on the form prescribed by the Administrative Director (DWC Form 233). The original must be filed with the AD and copies served on the parties as detailed below.
Form and content of the objection ADR 9788.1(a), (b)
The objection must be submitted on DWC Form 233 and must include the following:
* The identity and contact information for the parties and the treating physician.
* A statement of the "exact procedure" which is objected to, including the identity of the facility where the procedure is to be performed and any alternate facility proposed by the employer or its carrier.
* A declaration establishing the date of receipt of the treating physician's report recommending the procedure.
* A statement of the employer's reasons, specific to the employee, for the objection to the recommended procedure.
* A declaration regarding service of the Objection.
These declarations must be executed under penalty of perjury by a principal or employee of the employer, insurance carrier, or administrator. ADR 9788.1(b).
A copy of the treating physician's report with the recommendation that is being objected to must be submitted with the objection.
Form DWC 233 may be downloaded at: http://www.dir.ca.gov/dwc/dwcpropregs/SpinalProposedReg.htm. This form is also available on WorkCompCentral in the Forms section under Legal.
COMMENT: The form does not mention the employer/carrier/administrator's attorney as one authorized to sign the declaration.
Service of the Objection. ADR 9788.1(c)
* The employer shall serve the original of the objection and the report containing the treating physician's recommendation on the Administrative Director.
* Copies shall be served on the employee, the employee's attorney, if any, and the treating physician.
Service on the Administrative Director shall be by mail or physical delivery to:
Administrative Director, Medical Unit
P. O. Box 888
San Francisco, CA 94128-8888
Service of the objection by fax on the AD is not permitted.
Service on the employee, employee's attorney, and treating physician shall be by mail or physical delivery or, if prior consent has been obtained from the recipient to be served by fax.
Who provides the second opinion? - LC 4062(b)
If the employee is represented by an attorney, there are two choices, the parties may agree to one examiner or request that one be appointed by the AD. LC 4062(b).
An agreed second opinion physician selected by the parties may be any California licensed board-certified or board-eligible orthopedic surgeon or neurosurgeon. - LC 4062(b), ADR 9788.2(a).
There is a 10 day window (presumably starting with the objection) to reach agreement on a physician otherwise, the AD will randomly appoint a second opinion physician. - LC 4062(b).
Even if an AME is contemplated, Form 233 must be timely filed in order to invoke the process.
If an AME is selected by the parties or the employer withdraws its objection to the treating physician's recommendation for spinal surgery, the employer shall notify the Administrative Director within one working day of the agreement or withdrawal of objection. This notification may be by fax. - ADR 9788.1(d).
If the employee is unrepresented, the Administrative Director randomly assigns an orthopedic surgeon or neurosurgeon to prepare the second opinion report.
The second part of this article will review more pertinent questions regarding the second surgical opinion process, and also provide a summary time line for the various required actions in the process.
Author Geoffrey K. Hansen is a principal in the law firm Hansen, LeClerc & Pressman. He can be reached by phone at (530) 247-0100, or by e-mail at geoff@hlp-law.com.
-------------------
The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.
Comments