Joined: Mar 2004
Sunday March 01, 2009 1:52 PM
Spinal surgery requests are controlled by the SSSOP [spinal surgery second opinion procedure]. This was explained in the WCAB significant panel decision Brasher v Nationwide Studio Fund (2006) 71 CCC 1282, which was recently followed in the panel decision Baldridge v. Vons 2008 Cal. Wrk. Comp. P.D. LEXIS ---
When an employer receives a spinal surgery treatment request, the employer may:
(1) accept the spinal surgery treatment request;
(2) deny the spinal surgery treatment request via UR;
[and the applicant may appeal a UR denial of spinal surgery by filing DWC 233]
(3) send the spinal surgery treatment request directly to DWC via form 233; or
(4) do both (2) and (3) timely.
IF there was a spinal surgery treatment request; and
IF the employer timely denied it via UR;
THEN the applicant has the burden of appealing that UR denial by filing DWC Form 233.
Tammy Baldridge v. Vons 2008 Cal. Wrk. Comp. P.D. LEXIS ---
Medical TreatmentUtilization ReviewSpinal SurgeryWCAB rescinded WCJ's finding that applicant/retail sales manager with 3/13/2008 cervical injury was entitled to spinal surgery consisting of an "anterior cervical discectomy at C5-C6 with interbody fusion and instrumentation," as recommended by treating neurosurgeon, on basis that defendant's objection to spinal surgery was untimely under Labor Code ﾧ 4062(b) and that medical evidence was insufficient to support denial of surgery, when WCAB found that defendant timely issued utilization review denial of surgery under Labor Code ﾧ 4610(g)(1) within five working days of receiving request for surgery and that, pursuant to Brasher v. Nationwide Studio Fund (2007) 72 Cal. Comp. Cases 229 (writ denied), applicant applicant was then required to seek spinal surgery second opinion under Labor Code ﾧ 4062(b), rendering issue of whether defendant objected within Labor Code ﾧ 4062(b) timelines irrelevant pursuant to State Compensation Insurance Fund v. WCAB (Sandhagen) (2008) 44 Cal.4th 230, 79 Cal.Rptr.3d 171, 186 P.3d 535, 73 Cal.Comp.Cases 981 and Brasher, but that defendant's objection under Labor Code ﾧ 4062(b) relieved applicant of her obligation to initiate Labor Code ﾧ 4062 process since applicant may have relied on fact that defendant already initiated process; WCAB held that, contrary to Labor Code 4600(b) and Sandhagen, neurosurgeon's opinion, upon which WCJ relied, was insufficient to establish applicant's entitlement to spinal surgery because opinion made no reference to ACOEM Guidelinesi.e., did not explain why recommendation for surgery was consistent with ACOEM Guidelines or why ACOEM Guidelines were not appropriate so as to rebut application of Guidelinesand other medical evidence in record indicated that recommended surgery was inconsistent with ACOEM Guidelines.