SAN FRANCISCO, CA - The California Workers' Compensation Appeals Board issued an en banc decision:

Jesus Cervantes
v.
El Aguila Food Products, Inc., Safeco Insurance Co. of Illinois, Superior National Insurance Co., In Liquidation, California Insurance Guarantee Association, and Broadspire (Servicing Facility)

ADJ3675309 (SAL 0081669)
ADJ2967795 (SAL 0101259)
ADJ3517865 (SAL 0077391)
ADJ1962561 (SAL 0077392)

This decision was filed and served on November 19, 2009.

In this case the Appeals Board held that the procedures and timelines governing objections to a treating physician’s recommendation for spinal surgery are contained in Labor Code sections 4610 and 4062 and in Administrative Director (AD) Rules 9788.1, 9788.11, and 9792.6(o) and are as follows: (1) when a treating physician recommends spinal surgery, a defendant must undertake utilization review (UR); (2) if UR approves the requested spinal surgery, or if the defendant fails to timely complete UR, the defendant must authorize the surgery; (3) if UR denies the spinal surgery request, the defendant may object under section 4062(b), but any objection must comply with AD Rule 9788.1 and use the form required by AD Rule 9788.11; (4) the defendant must complete its UR process within 10 days of its receipt of the treating physician’s report, which must comply with AD Rule 9792.6(o), and, if UR denies the requested surgery, any section 4062(b) objection must be made within that same 10-day period; and (5) if the defendant fails to meet the 10-day timelines or comply with AD Rules 9788.1 and 9788.11, the defendant loses its right to a second opinion report and it must authorize the spinal surgery.

The Appeals Board also disapproved of Brasher v. Nationwide Studio Fund (2006) 71 Cal.Comp.Cases 1282 (Appeals Board significant panel decision) (Brasher) to the extent it holds: (1) a defendant may opt out of UR and instead dispute the requested spinal surgery using only the procedure specified in section 4062(b); and (2) if a defendant’s UR denies spinal surgery, it is the employee that must object under section 4062(a).

Because defendant’s position in this case was then fully consistent with the Appeals Board’s significant panel decision in Brasher, and because at that time there was no binding opinion – either a published appellate opinion or an en banc decision of the Appeals Board – that expressly or implicitly disapproved of this aspect of Brasher,  the Appeals Board rescinded the May 13, 2009 Findings and Order determining that applicant is entitled to lumbar spinal fusion surgery and  returned the matter to the trial level to allow defendant 10 days from the date of its receipt of this opinion within which to object to the treating physician’s spinal surgery recommendation (cf. Lab. Code, § 4062(b)) and to commence the spinal surgery second opinion process pursuant to this decision.

Source: Rick Dietrich, Secretary and Deputy Commissioner, WCAB