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Elliott v. Workers' Compensation Appeals Board

February 25, 2010

VICKIE ELLIOTT, PETITIONER,
v.
WORKERS' COMPENSATION APPEALS BOARD AND NEWSGROUP OF SACRAMENTO ET AL., RESPONDENTS.



(WCAB No. ADJ6572545)

The opinion of the court was delivered by: Reardon, J.

CERTIFIED FOR PUBLICATION

In State Comp. Ins. Fund v. Workers' Comp. Appeals Bd. (2008) 44 Cal.4th 230, 233-234 (State Comp.), our Supreme Court clarified that when an employer is faced with deciding whether to approve or deny the treatment recommendation of an injured worker's physician, it must conduct utilization review pursuant to Labor Code*fn1 section 4610. By the same token the employer cannot, as an alternative to utilization review, dispute the treatment request under the general dispute resolution framework set forth in section 4062, subdivision (a) (section 4062(a)).

In this case we are asked to clarify the dispute resolution procedure that comes into play when the employee's treating physician specifically recommends spinal surgery but the employer's utilization review decision is to deny treatment. As we explain, special procedures and timeframes govern this situation calling for the employer to instigate the spinal surgery second opinion process detailed in section 4062, subdivision (b) (section 4062(b)); however, they were not followed in this case. Instead, the Workers' Compensation Appeals Board (WCAB or board) ruled that under Brasher v. Nationwide Studio Fund (2006) 71 Cal.Comp.Cases 1282 (Brasher), when an employer responds to a treating physician's recommendation for spinal surgery by timely denying that request pursuant to its utilization review, the employee must object to the denial and the dispute will then be resolved under section 4062(b). Because petitioner Vickie Elliott did not object to the utilization review denial or seek a spinal surgery second opinion report, the board decided her employer was not obligated to provide the requested spinal surgery.

After this matter became fully briefed, the WCAB issued its en banc decision in Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal.Comp.Cases 1336 (Cervantes), explicitly denouncing the Brasher holding relied on by the WCAB in this case. We, too, reject that holding, reverse the decision of the WCAB, and remand with directions that the board immediately order respondents*fn2 to authorize the requested spinal surgery or object to the treating physician's spinal surgery recommendation under section 4062(b) within 10 days of receipt of the order, thereby commencing the spinal surgery second opinion process.

I. BACKGROUND

The facts are not in dispute. In June 2005, Vickie Elliott was employed as a working merchandiser supervisor for The Newsgroup. While stocking and moving merchandise, stacked totes of magazines fell on Elliott. Her primary treating physician referred Elliott to Dr. Robert Rovner, a spine surgeon, who recommended spinal surgery on May 20, 2008. The faxed documents were received by Gallagher Bassett, The Newsgroup's workers' compensation claims administrator, on May 21, 2008. Gallagher Bassett submitted the request through the "Utilization Review process." By a document dated May 29, 2008, Dr. Kelly Agnew issued an opinion denying the requested lumbar fusion.

At the time of the denial, Elliott was not represented by an attorney. No one notified Elliott of any requirement to request a spinal surgery second opinion or file an objection to the utilization review denial. Nor did The Newsgroup submit a request for a second spinal surgery opinion.

Dr. Rovner appealed the denial and on August 1, 2008, a different doctor issued a second utilization review denial.

Elliott retained counsel at the end of August 2008. Counsel demanded that respondents immediately authorize the proposed spinal surgery, asserting that the denial was untimely and invalid. Further correspondence delved into the requirements governing spinal surgery recommendations. In January 2009 counsel filed a declaration of readiness to proceed to an expedited hearing.

The workers' compensation judge found that the utilization review denial was timely; respondents did not seek a spinal surgery second opinion after the utilization review denial as required by sections 4062(b) and 4610, subdivision (g)(3)(A) (section 4610(g)(3)(A)); respondents did not notify Elliott of any requirement to file a written objection to the utilization review denial within 10 days of that denial; and more than 45 days passed since the original request for spinal surgery. Accordingly, the workers' compensation judge ordered respondents to authorize the requested spinal surgery "forthwith."

Respondents petitioned for reconsideration, arguing that they properly denied Elliott's request for spinal surgery following the utilization review, in keeping with State Comp. and the procedures set forth in the significant panel decision*fn3 in Brasher. Under respondents' view, an employer is entitled to rely and rest upon its utilization review denial of the request for spinal surgery. Therefore, the onus is on the employee to commence the process for procuring a second spinal surgery opinion under section 4062(b). Elliott countered that under State Comp., the procedures set forth in Brasher are no longer valid. Further, sections 4610 and 4062 mandate that it is the employer who must request a second opinion following denial pursuant to the utilization review. The WCAB agreed with respondents, granted reconsideration and rescinded the workers' compensation judge's order directing respondents to authorize the spinal surgery. This petition for writ of review followed.

II. DISCUSSION

A. Introduction; State Comp. ...


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