The 1st Appellate District has reversed the W.C.A.B. decision in Elliot v W.C.A.B., agreeing with the subsequently issued en banc decision in Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal.Comp.Cases 1336 (Cervantes) regarding the procedures to be followed in requests for spinal surgery pursuant to Labor Code § 4062(b).
The fact pattern in Elliot is much like the fact pattern in Cervantes. Defendant, in reliance on the W.C.A.B. decision in Brasher v Nationwide Studio Fund, obtained an opinion from its Utilization Review (UR) program declining to authoize a spinal surgery. Applicant failed to request a second surgical opinion and instead asserted defendant was obligated to initiate that procedure after the UR denial. The Trial Judge agreed with applicant and declined to follow the Board's opinion in the Brasher Significant Panel Decision. The W.C.A.B. granted defendant's Petition for Reconsideration and reversed in reliance on Brasher holding applicant was obligated to file the request for a second surgical opinion. Applicant Petitioned for writ of review raising the same arguments and the 1st District agreed to hear the case.
Applicant's arguments were substantially bolstered several months later when the W.C.A.B. reversed its own holding in Brasher and issued the en banc decision in Cervantes holding:
"...(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 W.C.A.B. also specifically referenced its prior decision in Elliot and for all intents and purposes conceeded its holding in that case to be in error.
The Court of Appeal requested the parties in Elliot to brief the impact of Cervantes. Both sides effectively agreed Cervantes was probably a better interpretation of Labor Code § 4062(b) than was Brasher and the argument boiled down to whether the defendant would be given an opportunity, much like the defendant in Cervantes, to initiate the second surgical opinion process.
"... So, too, here respondents followed Brasher while it was still viable law. We similarly conclude that the appropriate remedy is to reverse the WCAB's decision and remand with directions immediately to order respondents either to authorize the spinal surgery or to initiate the second opinion process within 10 days of its order."
This decision is not necessarily the last word on this issue as the defendant has taken up the W.C.A.B. en banc decision in Cervantes with a Petition for Writ of Review. However as noted by both the W.C.A.B. and this Court, it is difficult to torture Labor Code § 4062(b) to create an obligation for the employee to file a request for a second surgical opinion.
"...That statute and the governing regulations require the employer to object to the treating physician's recommendation within 10 days of receipt of the request, in compliance with sections 9788.1 and 9788.11 of California Code of Regulations, title 8. At no point does this scheme place the onus on the employee to initiate the second spinal surgery report."
It is difficult therefore to envision an Appellate Court ignoring the language of the statute, even though perhaps inartfully drawn, to place a burden on the employee that simply does not exist. Careful observation of the procedure outlined in Cervantes should certainly be part of every claim organization's goal.