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February 8, 2013

Spinal Surgery Requests And The SB 863 Gap

Summary:

Come July 1, 2013, many areas of Workers' Compensation that have "gap" problems will simply go away. And the parties will fully participate in the independent medical review process on all claims. Until that time, however, we must continue to infer what the legislature intended, and litigate items such as this, if necessary.

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In an attempt to simplify the ever-confusing Workers’ Compensation world in the great State of California, our legislative branch drafted SB 863 in 2012. With the stroke of his pen, Governor Brown enacted sweeping legislation, with effective and varying start dates for various provisions of the new law. However, with varying start dates comes confusion regarding various provisions. A spinal surgery request is one of the areas which appears to have a problem with the implementation date of July 1, 2013.

Effective January 1, 2013, provisions under Labor Code § 4062(b) pertaining to the spinal surgery second opinion process have been eliminated from the Labor Code. Overall, this is a positive result for the Defendant from SB 863. The new independent medical review (IMR) process kicks in on July 1, 2013, for dates of injury prior to January 1, 2013. However, a new question has surfaced as a result of this substantial change. How do we address spinal surgery requests for dates of injury prior to January 1, 2013?

The new regulations and the Labor Code conflict in their guidance. Labor Code § 4062 (b) reads: “For injuries on or after 1/1/2013 and for UR decisions communicated on or after 7/1/2013, regardless of date of injury, all employee objections to utilization review disputes under Lab Code § 4610 are resolved only IMR pursuant to 4610.5 and not through the QME process.” Simple enough. Yet with the provisions of Labor Code § 4610.5 regarding the IMR process not starting until July 1, 2013, we have a sizeable gap of six months where the parties are seemingly unable to participate in a second opinion process as well as the independent medical review process.

Causing even more confusion is the second half of Labor Code § 4062(b) which reads: “For injuries on or after 1/1/2013 and for objections to diagnosis of treatment recommendations within the MPN, regardless of the date of injury, all employee objections to diagnosis or treatment recommendations within the MPN are also resolved only through independent medical review pursuant to § 4610.5.”

Curiously, this seems to imply that the independent medical review process is the method which should be used, since a request for spinal surgery is clearly a request for care. Further, the process is to be implemented “regardless of the date of injury.” That being said, we must note that the objections must come from care within the medical provider network (if applicable). Further, it appears that this section refers only to “employee” (not employer) objections.

So what is the correct answer? In my research, I consulted with numerous publications. I also consulted with fellow colleagues. All presented varying answers. Ultimately, I found the answer in Labor Code § 4610(g)(3) which provides:
“(3) (A) Decisions to approve, modify, delay, or deny requests by physicians for authorization prior to, or concurrent with, the provision of medical treatment services to employees shall be communicated to the requesting physician within 24 hours of the decision. Decisions resulting in modification, delay, or denial of all or part of the requested health care service shall be communicated to physicians initially by telephone or facsimile, and to the physician and employee in writing within 24 hours for concurrent review, or within two business days of the decision for prospective review, as prescribed by the administrative director. If the request is not approved in full, disputes shall be resolved in accordance with Section 4610.5, if applicable, or otherwise in accordance with Section 4062.”

As Labor Code § 4610.5 is not applicable until July 1, 2013, Labor Code § 4062 will apply and the medical-legal process takes over. Which means the Defendant would adhere to the requirements under the guidelines established under the utilization review process when we are faced with a spinal surgery request.

Upon receipt of the request, they must proceed with a timely and proper review and furthermore must properly convey the denial for care as indicated above. It is important to remember that the Defendant must notify the “employee” by a copy to the employee and their attorney. In their notice to the physician, the correct, identified physician must be served as indicated above. Finally, it is my recommendation that with any utilization review determination, a proof of service should accompany the final, written decision. Although this step may be seen as a small one and potentially burdensome, a proof of service signed under penalty of perjury usually eliminates a claim of late or improper service, and can be a very valuable tool at the time of a hearing.

Assuming the utilization review process was completed properly and a denial issued, the parties would then proceed with a medical-legal evaluation under Labor Code § 4062 to resolve the dispute.

Come July 1, 2013, many areas of Workers’ Compensation that have these sorts of “gap” problems will simply go away. And the parties will fully participate in the independent medical review process on all claims. Until that time, however, we must continue to infer what the legislature intended, and litigate items such as this, if necessary.

*Special thanks to Jake Jacobsmeyer.

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