Request For Spinal Procedures Addressed by WCAB

This newsletter does not normally report on panel decisions.However, this case has some significance.

In this case the parties stipulated to a specific injury on April 22, 2002. The treating doctor requested a trial of spinal cord stimulation. The defendant referred the request to utilization review. Utilization review denied the request. Defendant also filed a DWC Form 233 Objection to Treating Physician’s Recommendation for Spinal Surgery. The case went to trial and the Workers’ Compensation Judge (WCJ) awarded the spinal surgery. The defendant petitioned for reconsideration. The following opinion was generated by the Workers’ Compensation Appeals Board (WCAB).

” In response to the treating physician’s recommendation for spinal surgery, an employer has the following options: 1) authorize the surgery, 2) object to the surgery, pursuant to 4062 (b), by filing a DWC Form 233 within 10 days of receipt of the doctor’s recommendation, 3) submit the recommendation to utilization review, or 4) pursue both options 2 and 3, either simultaneously or by filing an objection after a utilization review denial, meeting the time lines for each process. The dispute will then be resolved under the second opinion procedures in section 4062 (b).”

In this case the defendant followed the correct procedure. Just because the WCAB did not meet its time lines is no reason to penalize the defendant. Therefore, the procedure must be completed even if the WCAB does not act timely. Only at that point can the WCJ make a decision. The decision must then be based on the merits of each individual case.

This case was then returned to the trial level.

Case: Brasher v. Nationwide Studio Fund
This is an opinion and decision after reconsideration panel decision

Harvey Brown
3501 Jamboree Rd. Suite 602
Newport Beach, CA 92660

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