California: Medical Emergencies Post SB 863

California: Medical Emergencies Post SB 863

The recent reform act of SB 863 will bring in a whole host of changes to our workers compensation medical treatment (MT) delivery system. As we pour over the new and revised statutes and the new and revised regulations, it is helpful to consider what aspects of the law have changed, and what aspects remain the same.

For instance, in the recent panel decision of Moser v. Valli Construction, 2012 Cal. Wrk. Comp. P.D. LEXIS 590, the WCAB explained in great depth how a need for medical treatment for a “bona fide medical emergency” differs from a need for medical treatment on a more common prospective basis. Part of the issue in this case dealt with the failure of Mr. Moser to use Labor Code § 4062(b), the 2nd opinion for spinal surgery procedure; the process for which was repealed by SB 863. Although that 2nd opinion process was repealed, the question remains whether the basic premise for what constitutes a “bona fide medical emergency” is still viable?

I. Facts:

The facts in the Moser case are not complicated. On November 2, 2010, Mr. Moser, a 47-year-old project manager for Valli Construction Company, sustained a serious industrial injury to his back. On April 12, 2011, he underwent a surgery for implantation of a metal disc in the lumbar spine at L4-L5.

His doctors estimated that the usual recuperation period for this type of surgery would be about 6 to12 months. However, rather than improve, Mr. Moser’s condition got exponentially worse over time. He experienced unbearable periods of excruciating pain, despite massive dosages of pain medication. It seemed to be the consensus of Mr. Moser’s doctors that his problems stemmed from some sort of allergy to the metal disc that had been placed in his spine.

The panel QME in pain management suggested Mr. Moser be seen by an internist who specializes in allergies, such as Dr. Cayton, to confirm whether Mr. Moser was indeed allergic to the metal implant.

Unfortunately, the earliest appointment that could be scheduled with Dr. Cayton was June 21, 2012. Mr. Moser was in so much pain, he was not able to wait another six months for that appointment. So he agreed to another back surgery. On February 14, 2012, Dr. Zanganeh of Kaiser removed the metal implant in his spine.

Once the metal was removed, Mr. Moser’s symptoms began to alleviate. Again, the medical consensus was that the surgery was an “appropriate course of action” and that it constituted a “bona fide medical emergency.”

After the surgery, defendant was reluctant to pay Mr. Moser temporary disability (TD). They argued that since they had not been notified of the surgery, and that the PTP’s request had not been put through the 2nd opinion process of Labor Code § 4062(b), they were not required to pay TD. The TD issue went to trial. The Workers’ Compensation Judge (WCJ) found in favor of the injured worker and the award was affirmed by the WCAB.

II. Repealed Labor Code § 4062(b) Did Not Apply to a “Bona Fide Medical Emergency”:

Labor Code § 4062(b), as it existed in 2012 read, “The employer shall not be liable for medical treatment costs… or for periods of TD resulting from the surgery, if the disputed surgical procedure is performed prior to the completion of the second opinion process required by this subdivision.”

Since Mr. Moser failed to follow the procedure set forth in Labor Code § 4062(b), defendants argued that they were not liable for TD following the surgery.

The WCJ rejected defendant’s argument and compared Mr. Moser’s situation to an employee needing “bona fide medical emergency.” The WCJ in his Report and Recommendation stated, “The most recent report of Dr. Mathews makes clear that the surgery was an urgent necessity to avoid the worsening of applicant’s condition. That language was close enough to bring this case under the same umbrella as emergency cases.” Medical treatment that is considered a “bone fide medical emergency” is specifically excluded from this Labor Code § 4062(b) 2nd opinion process per 8 Cal. Code. Reg. § 9788.01(l)(4).

The defense appealed the WCJ’s decision, but the Commissioners affirmed the WCJ, following a similar analysis of the WCJ. The WCAB noted that it was the consensus of Mr. Moser’s physicians that his “explantation” surgery was a “bona fide emergency surgery” as follows:

“The medical evidence, as discussed above, establishes that applicant’s condition following his April 12, 2011 disc replacement surgery was deteriorating rapidly and that the opinions of all of the reporting physicians… was that he needed the February 14, 2012 surgery on an immediate basis and that it could not wait until the June 21, 2012 appointment with Dr. Cayton to determine whether applicant’s deterioration was related to his claimed metal allergy…. Here, the evidence is uniform that applicant’s condition significantly improved after the metallic disc was removed and his L4-5 vertebrae were fused. Thus, we conclude applicant’s condition constituted an imminent and serious threat to his health so as to be a “bona fide medical emergency.”

The WCAB recognized that even in emergency situations, there is a UR procedure in place under Labor Code § 4610(g)(2), which states that “emergency” UR decisions “… shall be made in a timely fashion that is appropriate for the nature of the employee’s condition, but not to exceed 72 hours after the receipt of the information reasonably necessary to make the determination.”

However, regardless of the language of the UR statute, according to the WCAB, it does not “relieve a defendant from liability for TD indemnity if an employee proceeds with a particular treatment before a defendant has the opportunity to complete UR.” Therefore the WCAB affirmed the WCJ’s award of TD.

III. Compare Past & Present to Determine if There’s a Match:

As we move into implementing this new round of reform legislation, it will be critical to determine whether prior case law remains persuasive or even relevant. The first step in determining whether a case is still good law is to compare the current pertinent statute or regulation with its pre-SB 863 counterpart.

The WCAB’s conclusion in this case was based on whether applicant’s surgery was based on a “bona fide medical emergency.” The WCAB read 8 Cal. Code. Reg. § 9788.01(l)(4) in conjunction with Labor Code § 4610(g)(2) to define the term as follows:

“That is, a “bona fide medical emergency” should be deemed to exist:

(1) When an employee faces an imminent and serious threat to his or her health… if spinal surgery is not performed on an emergency basis; or

(2) When the normal timeframe for the second opinion process would be detrimental to the employee’s life or health or could jeopardize the employee’s ability to regain maximum function.”

The question then becomes, has the definition of a “bona fide medical emergency” changed after enactment of SB 863?

The current version of Labor Code § 4610(g)(2) seems to mirror the previous definition as follows:

“When the employee's condition is such that the employee faces an imminent and serious threat to his or her health… , or the normal timeframe for the decision-making process… would be detrimental to the employee's life or health or could jeopardize the employee’s ability to regain maximum function, decisions to approve… the provision of medical treatment services to employees shall be made in a timely fashion…, but not to exceed 72 hours after the receipt of the information reasonably necessary to make the determination.” (Emphasis added.)

In fact, 8 Cal. Code. Reg. § 9792.9.1(e)(2) specifically states that a retrospective review of an “emergency health care service” may well be warranted under certain conditions. In addition, the regulation states that failure to obtain authorization for the emergency medical treatment, as occurred in the Moser case, will not automatically bar recovery for the costs of said treatment, due to failure to obtain pre-authorization.

8 Cal. Code. Reg. § 9792.9.1(e)(2) provides: “Failure to obtain authorization prior to providing emergency health care services shall not be an acceptable basis for refusal to cover medical services provided to treat and stabilize an injured worker presenting for emergency health care services. Emergency health care services may be subjected to retrospective review.” (Emphasis added.)

IV. Conclusion:

In this case, it looks like the operative statute for both the pre- and post-SB 863 are identical. The legislature did make any revisions to Labor Code § 4610(g)(2).

In addition, the pertinent post-SB 863 regulations, although different than pre-SB 863 regulations, bolster the holding of the WCAB in the Moser case.

With regard to the provision of emergency medical services, the best practice is for the injured worker or the physician to alert the defense of the medical treatment request, so that they may process the request as an expedited Utilization Review. However, under certain circumstances, that may not be feasible. In such cases, as in the Moser case discussed above, a retrospective review of the medical treatment may be an option.

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