First Appellate District Holds That Employer Failed To Follow Prescribed Procedures For Resolving Conflict Between Employee’s Treating Physician And Employer’s Utilization Review Process
An employer faced with a treating physician’s recommendation must conduct a utilization review before denying treatment. See State Compensation Insurance Fund v. WCAB (2008) 44 Cal. 4th 230, 233-234. And it cannot, as an alternative to utilization review, avail itself of the general dispute resolution framework set forth in Labor Code Section 4062 (a). In Elliott v. WCAB and Newsgroup of Sacramento, et al, No A125585 (February 25), Division Four of the First Appellate District was asked to clarify the dispute resolution procedure applicable to a conflict between the treating physician’s recommendation with respect to spinal surgery and the results of the utilization review. The Court held that the appropriate course was for the employer to invoke the special procedures and timeframes set forth in Labor Code Section 4062 (b). This does not depend, as the employer here assumed, on the employee objecting to a denial. Contrary to the WCAB holding in Brasher v. Nationwide Studio Fund (2006) 71 Cal.Comp.Cases 1282, the employer must act on its own. The employer here did not. In coming to this decision, the Court cited to the WCAB’s post-Brasher decision in Cervantes v. El Aguila Food Products, Inc. (2009) 74 Cal.Comp.Cases 1336 in which the WCAB itself denounced Brasher. The Court therefore held that the WCAB must direct the employer in this case to authorize the spinal surgery recommended or object under Section 4062 (b), thereby commencing the spinal surgery second opinion process.
February 25, 2010
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