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On Spinal Surgery Requests

California Workers’ Compensation Defense practice offers few victories – but when they appear, they are sweet and make the whole effort worthwhile.

A recent decision from the Workers’ Compensation Appeals Board, Tomei v. Bay Alarm Company, addressed the application of California Code of Regulations section 9792.6(o).  As some readers might recall, earlier this month your humble author did a post on what constitutes a procedurally proper request for medical treatment.

The skinny:  A request for spinal surgery made in a narrative report must have the words “request for spinal surgery” clearly written by the surgeon across the top of the first page.

Applicant’s treating physician recommended spinal surgery, but the report in which the recommendation was made was in narrative form.  Although CCR 8 § 9792.6(o) allows requests for treatments to be made this way, it also requires “the document [to be] clearly marked at the top that it is a request for authorization.”

This treating physician didn’t mark the narrative report as required by § 9792.6(o), so applicant’s attorney did this for him in blue ink!  The report was sent to defendant with the words “request for treatment” hand-written across the top of the first page by the applicant’s attorney.

The WCAB held that the failure of the surgeon to clearly mark that the narrative report is a request for spinal surgery prejudices the defendant.  Therefore, the letter of the law applies.

In California Workers’ Compensation practice, defendants are given relatively little time to deal with spinal surgery requests.  The lesson here is that, when the physician requesting the treatment does not follow proper procedures, the defendant is shielded by the law.

As a habitual cynic, I can tell you that it is easy to become a perpetual cynic if you don’t keep your pessimism in check.  Cases like this one serve as an example of why it is important to fight for every inch of the relatively limited territory the law affords defendants.

Categories: Medical Treatment
  1. Robert
    November 2, 2011 at 9:59 pm

    I’m glad I read this. now i understand why my sisters neck surgery took so long to be authorized after an industrial injury. Of course you must realize that the surgeon stated the delay of several months has led to irreparable spinal cord nerve damage and with a probable 100% pd as she is now wheel chair bound with a very poor prognosis. Question: don’t you think these deny and delay tactics could be costing your clients money in increased PD? Never mind the human suffering and broken bodies you leave behind by these egregious tactics. You call the use of this technicality a “victory” and how you have to fight for every inch. This is a Pyrrhic victory. I believe you have lost your soul, counselor in the quest for billable hours. Suggestion: allow these poor souls to get their surgeries asap so their prognosis is improved, you may sleep better and may even actually save the w/c ins. some money.

    • November 2, 2011 at 10:10 pm

      Robert, I’m sorry about your sister’s condition. Generally, when a request for spinal surgery is properly made, the defendant has little to no time to respond. The adjuster must receive the report, review it, send it to Utilization Review, and then make an objection in under ten days. Of course there are times when there is an industrial injury and spinal surgery is appropriate, and I like to think that in those cases the party obligated by law to pay for the spinal surgery will do so.

      But, I also hope you understand that there are times when people get hurt playing football and then pretend it happened at work. Or their need for medical treatment in general or spinal surgery in particular comes from something other than an industrial injury. Some medical professionals are happy to look the other way or assist in the insurance fraud in order to collect a check. If the employers and the insurance companies stop guarding against these costs then two things will happen: the employers will, for a very short time, become providers of socialized medicine for the general population; and (2) the employers will leave California and never come back.

      There are honest physicians and chiropractors and lawyers and injured workers in this world. And then there is that group of the rest of them that poisons the well for everyone. With the burden being so high on employers when the procedure is properly followed, I hope you can understand why the defense community will use every legal and non-frivolous defense to keep the crippling costs of workers’ compensation down.

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