May 2010

10-Day Time Limit Applies to all Spinal Surgery Requests

The Court of Appeal agreed with the WCAB that an employer must complete both the Utilization Review (UR) process and initiate the Spinal Surgery Second Opinion process within 10 days of receipt of the report requesting surgery.  Elliott v. WCAB (1st Dist. Court of Appeal) agreeing with Cervantes v. SafeCo Ins. Co (WCAB en banc).

The Court rejected the notion that if UR denies a spinal surgery request, it is up to the applicant to object to that non-certification under Labor Code section 4062(b) and begin the spinal surgery second opinion process.  Instead, it is the employer’s burden to object and begin that process, even if the employer is satisfied with UR’s denial of the surgery request.

The Court and the WCAB noted that when read together, section 4062(b) and the rules governing UR require that the spinal surgery second opinion process begin after UR has denied the surgery request.  If UR certifies the request, then there is no legal “dispute” over the doctor’s request for spine surgery and it must therefore be authorized.  Only if UR denies the request does a dispute exist whereby the employer can initiate the second opinion process.

Normally, UR decisions must be appropriately made within 5 working days from receipt of the necessary information from the medical provider but in no case more than 14 days from the doctor’s treatment recommendation.  However, under these cases, the timeframe has been effectively shortened to 10 days for spinal surgery requests.

Within those 10 days the UR determination must be made and the 4062(b) spinal surgery request must be initiated.  The entire spinal surgery second opinion process including any exam and receipt of the second-opinion report must be completed within 45 days.

The Court also noted that the statute requires the employer to immediately authorize the surgery if the second opinion physician agrees with the surgery request or file a Declaration of Readiness to Proceed  (DOR) if the

physician does not agree.  The Court left unresolved the question of whether the employer must file an Application for Adjudication of Claim along with the DOR.

The WCAB and the Court seem to leave undisturbed the rules requiring all spinal surgery requests to be made in writing – a phone call will not suffice.  Also, the report must clearly state at the top of the first page that spinal surgery is being requested.

Independent Contractor Rule Expanded

The Court of Appeal upheld a WCAB decision expanding the definition of “independent contractor.” The Court found a gardener, who was injured in a fall, was not an employee and therefore his injury was not covered by workers’ compensation.  Lara v. WCAB (2nd Dist. Court of Appeal).

The applicant worked on a temporary basis for many clients, generally obtaining work by phone or by standing on a street corner.  On this occasion, he was hired by the wife of a diner’s manager to trim foliage hanging from the front of the diner.  He had done the same work the previous year.

The Court emphasized that when the applicant was hired, the method and means of doing the job were not discussed, only the result desired.  Also, the applicant had some investment in the tools for the job and his work was not what is usually done in the course of the hirer’s business, i.e., running a diner.

Other factors supporting independent contractor status include applicant’s testimony that no one told him exactly how to do the pruning, he worked without supervision, and he chose both the date and time of the service.

Ogilvie Cannot be Based on Malingering

A WCAB panel overturned a Judge’s PD award that included an Ogilvie increase because he did not consider the applicant’s unwillingness to work.  Shini v. Farmers.

The panel noted that a QME had questioned the applicant’s credibility.  Nevertheless, the Judge simply relied on the applicant’s testimony that he could not return to work and therefore had a 100% proportional earnings loss.

In overturning the Judge, the WCAB held that an individual should not be allowed to manipulate the proportional earnings loss calculation under Ogilvie by malingering or otherwise minimizing post-injury earnings.   The panel noted that in Ogilvie cases Judges should consider motivation, retirement and economic downturns.

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