Just received a primary treating physician’s (PTP) request for authorization to provide spinal surgery? Think the proposed surgical treatment isn’t reasonable and necessary? 1 Don’t stop to smell the roses…you’re running out of time (literally!).
The WCAB’s most recent (11/19/09) en banc decision, Cervantes v. El Aquila Food Products Inc, requires that you jump through so many hoops to deny the authorization request that even the WCAB Commissioners admit it “may seem redundant”! 2 And all this redundacy must be completed within ten (10) days!
Your Choices Are GONE!
Per a prior WCAB Panel decision, Brasher 3, you had some choices when dealing with spinal surgery requests, such as:
- Relying exclusively on UR’s determination and letting applicant try to obtain a timely Labor Code 4062(b) 4 report to fight UR determination, or
- Obtaining both a UR determination and your own 4062(b) report, or
- Completely opting out of UR and disputing the spinal surgery recommendation using only a 4062(b) report.
All your choices have disappeared!
The WCAB expressly disapproved Brasher, and, in so doing, determined you either must approve the spinal surgery or timely proceed via the second approach listed above. That is:
- Defendant “must” undertake UR, completing that process “within 10 days of its receipt of the treating physician’s report,” and
- If— and only if— UR denies the surgery, defendant “may” object using Labor Code 4062(b).
Question: Given Cervantes’ use of the word “may” regarding invocation of Labor Code 4062(b), does this mean a timely 4062(b) objection is not mandatory?
Answer: While logic would dictate an affirmative answer, the WCAB provides a rather silly response. The defense is not “required” to timely object pursuant to 4062(b), but if you don’t you will “lose [your] right to a second opinion report and…must authorize the spinal surgery.” In short, you are not required to invoke 4062(b), but if you don’t…you lose!
Question: So even though 4062(b) and the WCAB say the employer “may” object to a PTP’s spinal surgery recommendation and “may” obtain a 4062(b) second opinion, I must authorize the spinal surgery if I don’t timely object via 4062(b)?
Question: To deny a PTP’s spinal surgery recommendation, I must complete the UR process within 10 days of the receipt of the PTP’s report and invoke 4062(b) within that same 10 days?
Answer: Exactly! (If you’re getting a headache, you’re probably starting to understand Cervantes!)
Question: What if UR authorizes the spinal surgery? Can I still obtain a second opinion via Labor Code 4062(b)?
Answer: Nope! If UR approves the requested surgery (or you fail to timely complete the UR process), you have one—and only one—option: authorize the surgery. Per Cervantes, “if there is no UR ‘deni[a]l’ there is no ‘dispute’ to ‘resolve.'” [p. 8, quoting 4610(g)(3)(A)]. “[A] defendant’s objection under section 4062(b) to a treating physician’s spinal surgery request may be made only after that request has been denied by UR” (p. 10, italics added).
Question: I’m too busy to do all this. I can let my attorney handle it, right?
Answer: At this point, having your attorney—or anyone other than “a principle or employee of the employer, insurance carrier, or administrator”—handle this on your behalf appears to be fraught with peril given that AD Rule 9788.1(a), cited approvingly by the WCAB, requires that any objection under 4062(b) “shall” use the form found in Section 9788.11 and “must” be executed by “a principle or employee of the employer, insurance carrier, or administrator.” 5
Question: What if UR timely denies the surgery and the Applicant timely invokes the Labor Code 4062(b)? Can we rely on that objection?
Answer: The WCAB makes clear that this is not an option: “it is the defendant, and not the injured employee, that may initiate the spinal surgery second opinion procedure.” Thus, B&B cannot recommend reliance on such an approach. If, however, this does occur on your case without an objection, query as to whether the parties have waived an objection to this procedural irregularity? (How many of us have been before a WCJ long after the timelines for obtaining an AME have long past, only to have the judge ask the parties, “Can’t you all agree on an AME”?) Nevertheless, such a scenario is likely to be rare. Indeed, it is increasingly unlikely that the Administrative Director would issue the name of a physician for a second opinion in response to a 4062(b) objection coming from the Applicant.
Question: Didn’t the California Supreme Court’s Sandhagen 6 decision recently tell us that the defense is to raise treatment disputes via UR and the injured employee—and only the injured employee—gets to use 4062 as a way to argue with a UR decision? Sounds like the WCAB’s Cervantes conflicts with a California Supreme Court holding, doesn’t it?
Answer: Not according to the WCAB. Cervantes distinguishes Sandhagen. Acknowledging that “Sandhagen repeatedly said that defendants cannot use section 4062 to dispute treatment requests…Sandhagen was not a spinal surgery case and it did not directly involve…4062(b).”
Question: If I need to complete UR and timely issue a 4062(b) objection within 10 days of receiving the PTP’s report, can I initiate both processes simultaneously?
Answer: To quote the Talking Heads, “Stop Making Sense”! 7
The Cervantes decision makes clear that proceeding simultaneously—and thus reasonably attempting to ensure you do not miss any deadlines—is not an option. “[A] defendant’s objection under…4062(b) to a treating physician’s request may be made only after that request has been denied by UR.” (Cervantes, p. 10, italics added)
Question: This is exhausting! Let’s say I’ve actually been able to beat the odds by:
- Sending the PTP’s report to UR
- Obtaining a UR denial of the surgical request
- Triggering 4062(b) by following all the requirements in AD Rules 9788.1, 9788.11 and 9792.6(o)
- Completing all of this within 10 days of receiving the PTP’s surgical recommendation
- Receiving a 4062(b) second opinion that concurs with UR…
…do I get to go to Maui to celebrate?
Answer: Not so fast. Per Cervantes, “at every step…4062(b) places the onus on the defendant.” (p. 11) 4062(b) next requires that “[i]f the second opinion does not recommend surgery, the employer shall file a declaration of readiness to proceed.” So, once you’ve filed your DOR, pack your bags for Hawaii, but be sure to be back in time for the hearing.
Question: What hearing? If no Application for Adjudication has yet been filed, will the WCAB take action on my DOR? After all, they don’t have jurisdiction without an Application. Oh wait a minute…you’re going to tell me I’ve got to file the Application too, aren’t you?
Answer: Nope. After filing the DOR, your work is done. We can discern no labor code, regulation, or case law suggesting you must also file the application.
How often have you searched a medical report for treatment recommendations, only to:
- Find them buried on page 27 of the report, or
- Overlook them, or
- Not be able to determine whether the doctor was actually making a recommendation?
The PTP reports in Cervantes were typical of the problematic reports reviewed by adjusters and defense attorneys on a daily basis. The PTP provided such unclear observations as applicant “may be a surgical candidate” and “I do feel somewhat confidant that the patient would benefit from surgery…” Is that a real request for authorization to provide spinal surgery?
No longer must you hunt for treatment recommendations or guess as to whether spinal surgery is being recommended. The WCAB made clear that the 10-day timelines are “triggered only by a physician’s report that complies with AD Rule 9792(6)(o)[‘s]” mandate that the written request be provided:
- In a “Doctor’s First Report of Occupational Injury of Illness” (Form DLSR 5021), or
- The “Primary Treating Physician Progress Report” (DWC Form PR-2), or
- In a narrative format that is “clearly marked at the top that it is a request for authorization.” 8
No longer may the doctor play “got ya”! (Though the WCAB’s requirements certainly seem to contain a “got ya” flavor.)
Donald R. Barthel is a founding partner of Bradford & Barthel, LLP, as well as B&B’s Rating & File Consultation Services. Mr. Barthel is an acknowledged expert regarding the AMA Guides to the Evaluation of Permanent Impairment and the 2005 PDRS. Much of his time is dedicated to teaching these topics to adjusters, human resource directors, employer representatives, attorneys, and physicians throughout California and the United States. Have a PDRS or AMA Guides question? Call Don Barthel at (916) 996-1263 or email him at firstname.lastname@example.org.
1 Labor Code 4660 requires that employers provide “medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury.” This article relates only to disputes regarding the reasonableness and necessity of spinal surgery recommendations. It does not relate to spinal surgery disputes based on AOE/COE considerations.
2 Trust the Commissioners’ characterization…their procedures are very redundant!
3 Brasher v. Nationwide Studio Fund (2006) 71 Cal. Comp. Cases 1282, a significant panel decision.
4 Labor Code 4062(b) provides: The employer may object to a report of the treating physician recommending that spinal surgery be performed within 10 days of the receipt of the report. If the employee is represented by an attorney, the parties shall seek agreement with the other party on a California licensed board-certified or board-eligible orthopedic surgeon or neurosurgeon to prepare a second opinion report resolving the disputed surgical recommendation. If no agreement is reached within 10 days, or if the employee is not represented by an attorney, an orthopedic surgeon or neurosurgeon shall be randomly selected by the administrative director to prepare a second opinion report resolving the disputed surgical recommendation. Examinations shall be scheduled on an expedited basis. The second opinion report shall be served on the parties within 45 days of receipt of the treating physician’s report. If the second opinion report recommends surgery, the employer shall authorize the surgery. If the second opinion report does not recommend surgery, the employer shall file a declaration of readiness to proceed. The employer shall not be liable for medical treatment costs for the disputed surgical procedure, whether through a lien filed with the appeals board or as a self-procured medical expense, or for periods of temporary disability resulting from the surgery, if the disputed surgical procedure is performed prior to the completion of the second opinion process required by this subdivision.
5 Rule 9788.1(a) provides: An objection to the treating physician’s recommendations for spinal surgery shall be written on the form prescribed by the Administrative Director in Section 9788.11. The employer shall include with the objection a copy of the treating physician’s report containing the recommendation to which the employer objects. The objection shall include the employer’s reasons, specific to the employee, for the objection to the recommended procedure. The form must be executed by a principle or employee of the employer, insurance carrier, or administrator.
6 State Comp. Ins. Fund v. WCAB (Sandhagen) (2008) 44 Cal.4th 230 [73 Cal.Comp.Cases 981)
7 “Stop Making Sense (1984) is a concert movie featuring Talking Heads live on stage. Directed by Jonathan Demme, it was shot over the course of three nights at Hollywood’s Pantages Theater in December of 1983, as the group was touring to promote their new album Speaking in Tongues. The movie is notable for being the first made entirely utilizing digital audio techniques. The title comes from the lyrics of the song “Girlfriend is Better”: ‘As we get older and stop making sense…’.” http://en.wikipedia.org/wiki/Stop_Making_Sense 12/10/09.
8 AD Rule 9792.6(o) provides: “‘Request for authorization’ means a written confirmation of an oral request for a specific course of proposed medical treatment pursuant to Labor Code 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.”
9 You may recall that Mr. Larres is currently leading the defense of Almaraz/Guzman I & II, having filed briefs with the WCAB and who writes with the 6th District Court of Appeal on behalf of the defense in Guzman.
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