Elliott v. Workers' Compensation Appeals Board, et al., No. A125585 (Cal. Ct. App. 02/25/10).
Ruling: The California Court of Appeal ordered the employer to authorize the employee's spinal surgery or object to the treating physician's surgery recommendation.
What it means: In California, where a doctor recommends spinal surgery, the employer is not relieved of the obligation to provide the surgery if the employee fails to object to a denial of treatment by the employer's utilization review. The employer has to request a second opinion after a denial.
Summary: A merchandise supervisor injured her back when stacked magazines fell on her at work. A spine surgeon recommended surgery. The employer refused the surgery after a utilization review doctor denied the request. The employee appealed the denial. The employer argued that it was entitled to rely on the utilization review denial and that the burden was on the employee to obtain a second opinion after the denial. The appeals court rejected the employer's arguments. Under California's updated law, spinal surgery requests require a specific two-step analysis. The first step is completion of the utilization process, which is the same for all treatment requests, including spinal surgery. However, when a request for spinal surgery is denied, disputes are resolved through step two -- a separate, fast-track method. The employer has 10 days to authorize the surgery or object to the treating physician's recommendation after receiving the order. The burden is on the employer to pursue the spinal surgery second-opinion process if the employer objects.
The supervisor argued that because the employer failed to initiate the second-opinion process within 10 days, the court should order the employer to provide the surgery. She argued that the employer's arguments were flawed because they were based on outdated law. The court agreed that the law had been changed to carve out a specific rule for spinal surgery denial cases, calling for a post-utilization review employer objection to the treating physician's recommendation. It noted, however, that the employer relied on the law that was applicable at the time and concluded that the appropriate remedy was to order that the employer either authorize the surgery or initiate the second-opinion process within 10 days of its order.
The court pointed out that the requirement that the employer request the second opinion makes sense because the employer is in the best position to inform the worker of her rights and to implement the second-opinion process within the workers' compensation scheme in the time allotted under the law.
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April 29, 2010
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