Saturday, January 1, 2011

Fighting for Back Surgery

One of our several "wins" in 2010 was a dispute over spinal surgery.  The client ("Applicant") sustained a debilitating low back disc injury, with pain radiating down to his legs.  The treating doctors recommended back surgery and this was transmitted to the workers' comp insurance carrier ("defendant").

Under the Labor Code, the defendant should have either approved the recommended treatment or have a medical expert reject the treatment through their "Utilization Review" program.  Since this case involved a back operation, an objection required that defendant request a special "second opinion" consultation from a spinal surgeon.  But there are very strict time limitations surrounding the objection and subsequent second opinion examination and report, to wit: "Examinations shall be scheduled on an expedited basis. The second opinion report shall be served on the parties within 45 days of receipt of the treating physician's report." (See Labor Code section 4062(b).)

In our case, defendant failed to object and then refused to authorize the surgery.  This resulted in an expedited hearing (a hurry up trial to deal with the medical treatment issue).  At trial the judge strongly "suggested" that we agree on a second opinion doctor despite defendant's apparent failure to abide by 4062(b).  We agreed to use William Dillin, MD, of the renowned Kerlan-Jobe Orthopaedic Clinic.

But then Dr. Dillin failed to issue a report within the limits set by the law (45 days of receipt of the treating docotor's report).  When Dr. Dillin did produce a report, he didn't answer the question: was the applicant a candidte for back surgery?  So back to court for an order compelling Dr. Dillin's deposition since his office would not voluntarily schedule a deposition time.  During Dr. Dillin's deposition, the good doctor recommended surgery if the applicant passed a psychological pre-surgery clearance and a CT meylogram indicated evidence of "crushed" nerve roots.  Long story short, all of the new diagnostic testing supported going forward with surgery, but the defendant still refused to authorize back surgery.  Then the law received some support, a new case called  Cervantes v. El Aguila Food Products (2008) decided, among other issues, that failure to properly object under 4062(b), resulted in automatic liability for the disputed back surgery.  The court held that if utilization-review recommends spinal surgery, or if the defendant fails to complete utilization review within 10 days, the defendant must approve the surgery.

Upon reading Cervantes, we sent a letter to defendant again requesting the surgery and raised a penalty for the continued failure to authorize the back surgery.  To no avail, defendants continued to refuse the surgery.  Talk about insult to injury.  We petition the court for a new hearing.  The court granted our request for a trial and the judge ruled in applicant's favor.  Ironically, Dr. Dillin eventually issued a final report, after our trial, indicating that the applicant indeed met the minimum requirements for surgery.  We are currently drafting a new penalty petition because the defendant continues to object to the surgery, despite the court's ruling and Dr. Dillin's final report.

If you have a case involving the need for back surgery in an industrial setting, please feel free to contact our office to discuss your options.  We are happy to share our points and authorities with represented and unrepresented applicants.

The Harmon Firm, APC
Consumer Lawyers focusing on personal injuries and consumer bankruptcy.
*We do not charge a consultation fee.*

(714) 558-9729

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Santa Ana, California 92706
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