Elliott v. Workers' Comp. Appeals Bd., (2010) 182 Cal. App. 4th 355
• 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 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))
• Section 4062(a) specifically provides that employer objections to a treating physician’s recommendation for spinal surgery,
after denial of the physician’s recommendation pursuant to the utilization review procedures detailed in section 4610, shall be subject
to section 4062(b). In line with this provision, section 4610(g)(3)(A) also states: “If a request to perform spinal surgery is denied,
disputes shall be resolved in accordance with subdivision (b) of Section 4062.” (Italics added.)
• Section 4062(b) in turn states that “[t]he employer may object to a report of the treating physician recommending that spinal
surgery be performed within 10 days of the receipt of the report.” (Italics added.) Where, as here, the employee is unrepresented at
that time, the statute calls for the administrative directorto randomly select a surgeon “to prepare a second opinion report resolving
the disputed surgical recommendation.” (Ibid.) The evaluation occurs on an accelerated basis, with the second opinion report to be
served within 45 days of the original surgical request. (Ibid.) Moreover, the second opinion physician must be a “licensed board-
certified or board-eligible orthopedic surgeon or neurosurgeon . . . .” (Ibid.)
• Finally, Cervantes clarifies that the employer must both complete its own utilization review and make its section 4062(b)
objection within 10 days of receiving the treating physician’s report recommending spinal surgery. (Cervantes, supra, 74 Cal.Comp.
Cases at pp. 1351-1352.) First, section 4062(b) requires the employer to object to the spinal surgery recommendation within 10 days
of receiving the report. Second, section 4062(a) states that these employer objections are “subject to subdivision (b), and after denial
of the physician’s recommendation, in accordance with Section 4610.” (Italics added.) In sync, section 4610(g)(3)(A) provides that if
utilization review denies the spinal surgery request, disputes shall be resolved in accord with section 4062(b). These three statutory
provisions, taken together, make it clear that the spinal surgery second opinion process commences after utilization review has denied
the requested spinal surgery. The utilization review scheme does not mandate a 10-day turnaround time, but 10 days is consistent
with the requirement that “[p]rospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of
the employee’s condition, not to exceed five working days from the receipt of the information reasonably necessary to make the
determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.” (§ 4610,
subd. (g)(1).)
• 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 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))
• Section 4062(a) specifically provides that employer objections to a treating physician’s recommendation for spinal surgery,
after denial of the physician’s recommendation pursuant to the utilization review procedures detailed in section 4610, shall be subject
to section 4062(b). In line with this provision, section 4610(g)(3)(A) also states: “If a request to perform spinal surgery is denied,
disputes shall be resolved in accordance with subdivision (b) of Section 4062.” (Italics added.)
• Section 4062(b) in turn states that “[t]he employer may object to a report of the treating physician recommending that spinal
surgery be performed within 10 days of the receipt of the report.” (Italics added.) Where, as here, the employee is unrepresented at
that time, the statute calls for the administrative directorto randomly select a surgeon “to prepare a second opinion report resolving
the disputed surgical recommendation.” (Ibid.) The evaluation occurs on an accelerated basis, with the second opinion report to be
served within 45 days of the original surgical request. (Ibid.) Moreover, the second opinion physician must be a “licensed board-
certified or board-eligible orthopedic surgeon or neurosurgeon . . . .” (Ibid.)
• Finally, Cervantes clarifies that the employer must both complete its own utilization review and make its section 4062(b)
objection within 10 days of receiving the treating physician’s report recommending spinal surgery. (Cervantes, supra, 74 Cal.Comp.
Cases at pp. 1351-1352.) First, section 4062(b) requires the employer to object to the spinal surgery recommendation within 10 days
of receiving the report. Second, section 4062(a) states that these employer objections are “subject to subdivision (b), and after denial
of the physician’s recommendation, in accordance with Section 4610.” (Italics added.) In sync, section 4610(g)(3)(A) provides that if
utilization review denies the spinal surgery request, disputes shall be resolved in accord with section 4062(b). These three statutory
provisions, taken together, make it clear that the spinal surgery second opinion process commences after utilization review has denied
the requested spinal surgery. The utilization review scheme does not mandate a 10-day turnaround time, but 10 days is consistent
with the requirement that “[p]rospective or concurrent decisions shall be made in a timely fashion that is appropriate for the nature of
the employee’s condition, not to exceed five working days from the receipt of the information reasonably necessary to make the
determination, but in no event more than 14 days from the date of the medical treatment recommendation by the physician.” (§ 4610,
subd. (g)(1).)
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