In law it's never over til its over.

A bad ruling may cause consternation, but subsequent cases may limit or disapprove of the bad ruling. Courts may change their mind. Subsequent appeals or other court cases give courts a chance to look at concepts in a different way.

Lawyers understand all this, but average people often have trouble accepting the concept.

In 2006 I was very troubled by the Brashear case. It always seemed clear to me that the spinal surgery second opinion procedure under Labor Code 4062(b) required the employer/insurer to instigate the 2nd opinion process.

But that was not the opinion of the WCAB, which issued a "significant panel decision" in Brashear v. Nationwide Studio Fund (2006) 71 CCC 1282. In Brashear the WCAB held that it was the obligation of the worker to instigate the 2nd opinion process. The 2nd opinion process generates a report from an independent spinal surgeon on whether surgery is reasonably required.

But the WCAB saw the error of its ways. In 2009, the WCAB issued an en banc opinion in Cervantes v. El Aguila Food Proiucts, Inc (2009) 74 CCC 1336. Cervantes finds that the burden of requesting a 2nd spinal opinion falls on the employer/insurer, not on the worker.

The Cervantes opinion can be found here:
http://www.dir.ca.gov/wcab/EnBancdecisi ... cedures%20(11-19-09%20final%20draft).pdf

But would the California Court of Appeals agree with the Cervantes logic, or would the Court of Appeals revert to the Brashear holding?

That was the question in Elliott v. WCAB and Newsgroup of Sacramento, a case heard by the California Court of Appeal, First Appellate District, Division Four.

The Elliott opinion was rendered in late February, 2010.The Court adopts the Cervantes line of reasoning in interpreting Labor Code 4062(b).

In a nutshell, an insurer who receives a spinal surgery request must undertake utilization review. If UR approves the surgery the surgery must be authorized. If UR is not done in a timely manner, the surgery must be authorized.

But if UR is done in a timely manner and UR denies the surgery, it is the defendant who must file for a 2nd spinal surgery opinion. The timeframe for filing for a 2nd spinal surgery opinion is 10 days from receipt of the treating physician surgery recommendation. Under 4062(b), an employer must file the request on specified forms (see AD Rule 9788.11).

While it's always possible that another Court of Appeal could reject the logic of Elliot and Cervantes and endorse the Brashear approach, it seems unlikely.

So, six years after the SB 899 reform created the spinal second opinion process, we finally appear to know how it is supposed to work.

The average joe on the street would probably be amazed to hear that it took six years for such a basic statutory procedural issue to be settled.
Six years is a long time.

The law is like that.

Stay tuned.

Julius Young
www.boxerlaw.com

Lawyers know better.

Friday 4:30.

It could have been any Friday. On this occasion it was an irate spouse on the voicemail. Something has to be done.

The spouse noted that pain meds prescribed for the worker were being denied at the pharmacy. The worker has been on a long list of medications for years after multiple surgeries failed to provide pain relief or improve functionality.

Those meds included opioid drugs which could have severe withdrawal effects. Those effects can include extreme anxiety, diarrhea, fever, nausea, tremors and sweating. The workers' meds also included anti-depressants which are not to be abruptly ceased.

Whether the worker should or could be detoxed from some of the multiple meds was a moot point on a late Friday afternoon.

The caller didn't reference it, but the over the counter cost to fill those multiple meds was probably over $1,000. That's money that family did not have.

The worker's anxious voice could be heard in the background as the spouse demanded immediate action.

It was too late for the worker to reach the doctor's office.

The caller left no details as to why the meds were being denied.

There may have been some dosage adjustments, but there was little change in what had been prescribed for some time. The treating pain management specialist (on the carrier's MPN list) had always compliant in filing reports that documented quite explicitly the symptoms and the various medications prescribed. The case had been settled some years ago, and future medical was not in dispute.

Did the carrier have a pharmacy administrator as an intermediary between the adjuster and the pharmacy? Perhaps the intermediary could not reach the adjuster?

Perhaps the adjuster was not paying the pharmacy bill, so the pharmacy
(at a major supermarket chain) was not willing to refill the meds until the bill was cleared? The supermarket pharmacy was unlikely to fill these on a lien.

As the attorney listened to the 4:30 voicemail, he recalled that when he'd last seen this file several months ago it was apparent that the carrier was not sending copies of all treatment progress reports. The attorney recalled no recent UR delay or UR denial notices. Perhaps the adjuster had sent the medication request out to UR but not sent out UR notices?

Or as the spouse claimed in the voicemail, did the adjuster "deny" the medications without any UR basis?

Who knew?

The attorney's staff tried to reach the adjuster by phone and fax. No response. At the end of the day it wasn't clear whether the worker would wind up in the emergency room, whether the worker would use
his Medicare card (through Social Security Disability) to pay for the medications (shifting liability onto Medicare), or whether the worker would undergo a hellish weekend.

What was apparent was that on a Friday afternoon, before a long holiday weekend, one worker's family was in crisis.

It was a puzzle. A very unpleasant puzzle.

It's a puzzle many of us often see. Even if it's not a Friday afternoon it can be a very unpleasant puzzle.

Julius Young
www.boxerlaw.com

Some teaching hospitals have been pushing for the U.S. healthcare reform bills to include an expansion of monies to fund as many as 15% more doctor residency programs.

Is America underserved with medical doctors? What kinds of doctors do we need? Will more doctors fuel more demand for procedures and services, adding to the overall expense of our national healthcare system?

An answer to this question must start with an acknowledgement that some rural areas and some parts of urban areas are woefully underserved.

And most experts believe that we need more primary care doctors. Those doctors are in short supply, as new medical graduates tend to seek higher paying specialty positions. Those medical specialties are procedure driven, generating higher incomes.

In the California workers' comp world, medical treatment costs are a critical cost driver of system costs. Some might argue that we'd be better off to have more generalists treating California workers. In effect we already have many primary care doctors who practice "occupational medicine" in various industrial clinics. I'm not aware of any studies comparing the costs and outcomes of "occ med" treatments versus specialist treatments in California workers comp. Maybe there is such a study, but if not it would be interesting to see one.

Proponents of "occ med" believe that its good to have a gatekeeper who can provide needed care without the incentive to do lots of procedures or unnecessary tests.

But in some comp cases occ med doctors are slow to investigate conditions. Delaying ordering an MRI which eventually reveals a herniated disc requiring surgery is a delay which can have drastic economic impact on the worker.

The comp system aside, it's clear we need more primary care docs in the system overall. But is expanding residency programs the answer?

In a New York Times Op-ed piece "Doctors No One Needs" Shannon Brownlee and David Goodman argue that expanding doctor residency programs is not the answer:
http://www.nytimes.com/2009/12/23/opini ... ee.html?em

Stay tuned for my next post, commentary on the 2009 CHSWC report on Californa workers comp.

Julius Young
www.boxerlaw.com

Political junkies love ads that highlight the machinations of politicians who reverse field.

You know, the " I was against it before I was for it before I decided to oppose it" variety.

Sometimes the politician has truly seen the light in a thoughtful way. But sometimes naked hypocrisy is exposed.

As a lawyer I savor watching courts reverse field. While it can be sparked by a change in the political complexion of the court, more often it's an exercise of intellectual integrity.

So it is in Cervantes v. El Aquila Food Products Inc, an en banc decision of the California Workers' Compensation Appeals Board (2009). A link to the decision can be found below.

At issue is the "spinal surgery second opinion" procedure of California Labor Code 4062(b). That section is part of the 2004 comp reforms.

The drafting of the 2004 was not uniformly stellar, and procedures under the 04 reforms have been the subject of much appellate litigation.

The WCAB en banc decision in Cervantes reverses field, rejecting procedural interpretations set forth in an earlier significant panel decision, Deanna Brasher vs. Nationwide Studio Fund and SCIF (2006).

The WCAB notes in Cervantes that when a treating doctor requests spinal surgery in writing the employer must:
-undertake utilization review (as noted by the California Supreme Court in the Sandhagen case)
-authorize the surgery if UR approves the surgery
-or authorize the surgery if UR is not done in a timely fashion

But what happens if a timely utilization review is done and UR disapproves of the surgery? Can the employer stand on its UR denial?
Must the injured worker then pick up the ball, requesting a spinal second opinion?

No.

Even if a timely UR review has refused to certify the requested spinal surgery, the employer/insurer must request a spinal second opinion under 4062(b).

Given the utilization review timeframe and the 10 day objection timeframe under 4062(b), the employer/insurer essentially must do a concurrent 4062(b) objection within the time it is doing its UR review.

The en banc opinion in Cervantes notes the following:
"We are cognizant that section 4610(g)(5) allows the deadlines of section 4610(g0(1) to be exceeded in some circumstances. Nevertheless, for the reasons above, we construe the statutory scheme to mean that, in spinal surgery cases only, the UR determination always must be made within 10 days of receipt of the treating physician's report, so that the defendant may still timely object under section 4062(b) if there is a UR denial."

In the Cervantes case, a timely UR review rejected the spinal surgery request. But Mr. Cervantes' employer failed to initiate a spinal surgery second opinion objection. The Brasher case had held that it was the worker's responsibility to file a timely request for a second spinal opinion.

That's no longer required of workers.

Employers will probably be unhappy with the strict time frames, but the WCAB has done an admirable job in reconciling somewhat complicated and overlapping procedural provisions.

Adjusters who want to preserve their denial options will need to track the time frames carefully to preserve their objections.

But a significant side issue in the case was the issue of whether the surgical request was properly formatted under California workers' comp regulations. Those regs require that requests for authorization either be on specific forms (including the "PR-2") or, under AD Rule 9792.6(o)
"If a narrative format is used, the document shall be clearly marked at the top that it is a request for authorization". More on that in another post.

Cervantes is an important decision that will affect many workers who seek spinal surgery. It may be appealed, but if so I predict that it will be upheld.

Here's the decision in pdf format:
http://www.dir.ca.gov/wcab/EnBancdecisi ... cedures%20(11-19-09%20final%20draft).pdf

Stay tuned.

Julius Young
www.boxerlaw.com



.

The Governor has signed AB 361.

AB 361, carried by Bonnie Lowenthal (D-Long Beach), prohibits an employer from refusing to pay for medical treatment if the employer authorized it before the service was rendered. Authorized treatments must be paid, even if the treater is not an MPN member. An employer can, however, withdraw or revise an authorization for treatments not yet provided.

Here's a link to the section:
http://leginfo.ca.gov/pub/09-10/bill/as ... rolled.pdf

The bill was introduced at the request of the California Chiropractic Association, whose member had experienced problems with refusal to pay for services that were authorized.

This caps the workers' comp bills for this session. Scroll down to read my posts on the bills the Governor has signed: Taneka's law, the predesignation bill, a bill to expand 4850 coverage, and a bill to require insurance coverage be posted online.

Stay tuned.

Julius Young
www.boxerlaw.com