2009-EB-10 (2009). Jesus Cervantes vs. El Aguila Food Producs Inc.; Safeco Insurance Co. of Illinois;Superior National Insyrance Co. In Liquidation; California Insurance Guarantee Association; and Broadspire (Servicing Facility).
Court | California |
California Workers Compensation Decisions
2009.
2009-EB-10 (2009).
Jesus Cervantes vs. El Aguila Food Producs Inc.; Safeco Insurance Co. of Illinois;Superior National Insyrance Co. In Liquidation; California Insurance Guarantee Association; and Broadspire (Servicing Facility)
WORKERS'COMPENSATION APPEALS
BOARD STATE OF CALIFORNIAJESUS CERVANTES,Applicant,vs. EL AGUILA FOOD
PRODUCTS, INC.;SAFECO INSURANCE CO. OF ILLINOIS;SUPERIOR NATIONAL INSURANCE
CO., In Liquidation; CALIFORNIA INSURANCE GUARANTEE ASSOCIATION; and BROADSPIRE
(Servicing Facility),Defendant(s).Case Nos. ADJ3675309 (SAL 0081669) ADJ2967795 (SAL
0101259) ADJ3517685 (SAL 0077391) ADJ1962561 (SAL
0077392)OPINION AND DECISION AFTER
RECONSIDERATION (EN BANC)We granted the petition for reconsideration of defendant, Safeco
Insurance Company of Illinois (Safeco), to allow time to further study the
record and applicable law. Thereafter, to secure uniformity of decision in the
future, the Chairman of the Appeals Board, upon a majority vote of its members,
assigned this case to the Appeals Board as a whole for an en banc decision
(Lab. Code, § 115)(fn1) regarding the proper procedure to be followed when
an injured employee's treating physician has recommended spinal surgery.
We hold that the procedures and timelines governing objections to
a treating physician's recommendation for spinal surgery are contained in Labor
Code sections 4610 and 4062(fn2) and in Administrative Director (AD) Rules
9788.1, 9788.11, and 9792.6(o)(fn3) and are as follows: (1) when a treating
physician recommends spinal surgery, a defendant must undertake utilization
review (UR);(fn4) (2) if UR approves the requested spinal surgery, or if the
defendant fails to timely complete UR, the defendant must authorize the
surgery; (3) if UR denies the spinal surgery request, the defendant
may object under section 4062(b), but any objection must comply with
AD Rule 9788.1 and use the form required by AD Rule 9788.11; (4) the defendant
must complete its UR process within 10 days of its receipt of the treating
physician's report, which must comply with AD Rule 9792.6(o), and, if UR denies
the requested surgery, any section 4062(b) objection must be made within that
same 10-day period; and (5) if the defendant fails to meet the 10-day timelines
or comply with AD Rules 9788.1 and 9788.11, the defendant loses its right to a
second opinion report and it must authorize the spinal surgery.
We expressly disapprove of Brasher v. Nationwide Studio
Fund (2006) 71 Cal.Comp.Cases 1282 (Appeals Board significant panel
decision) (Brasher) to the extent it holds: (1) a defendant
may opt out of UR and instead dispute the requested spinal surgery using only
the procedure specified in section 4062(b); and (2) if a defendant's UR denies
spinal surgery, it is the employee that must object under
section 4062(a).
I. BACKGROUND
Applicant, Jesus Cervantes, sustained several industrial injuries
to his low back in 1996, 1997, and 1998, while employed by El Aguila Food
Products, Inc. (El Aguila). El Aguila was insured by Safeco for two of these
injuries. On September 2, 2003, a stipulated Findings and Award issued which
determined, among other things, that applicant is entitled to further medical
treatment, administered by Safeco.
Applicant began treating with Catalino Dureza, M.D, who sent four
narrative reports to Safeco between September 2008 and January 2009. All four
reports described applicant's current problems and diagnosed "lumbar discopathy
with disc displacement" and "lumbar radiculopathy." The September 30, 2008
report requested authorization for a lumbar MRI; the November 4, 2008 report
said that applicant "may be a surgical candidate" pending the results of the
MRI; and the December 13, 2008 report set forth the MRI findings, but said Dr.
Dureza would continue to provide applicant with medication for symptomatic
relief. In the January 16, 2009 report, Dr. Dureza said: "I do feel somewhat
confident that the patient would benefit from surgery ... Therefore, I am
requesting L4-L5 and L5-S1 posterior lumbar interbody fusion with pedicle screw
fixation and extensive decompression by a Gill Procedure. ... [¶]
Authorization should be forthcoming in order to prevent further neurological
and musculoskeletal deterioration." However, the January 16, 2009 narrative
report did not clearly state at the top that Dr. Dureza was requesting
authorization for surgery.
On February 25, 2009, Dr. Dureza sent Safeco a fax captioned
"WRITTEN REQUEST FOR SURGERY AUTHORIZATION," which referenced his earlier
reports and requested that Safeco authorize an "L4-5 + L5-S1 posterior lumbar
interbody fusion with pedicle screw fixation."
On March 4, 2009, Safeco obtained a UR report from Allen Deutsch,
M.D., who concluded that the requested surgery "is not recommended as medically
necessary" based in part on the ACOEM Guidelines.(fn5)
An expedited hearing was held before a workers' compensation
administrative law judge (WCJ), at which the reports of Dr. Dureza and Dr.
Deutsch were admitted in evidence.
At trial, applicant argued that he is entitled to surgery
because: (1) Dr. Dureza's January 16, 2009 report clearly requested
authorization for surgery and, therefore, Safeco's March 4, 2009 UR denial was
untimely under section 4610(g); and (2) Safeco did not object to Dr. Dureza's
January 16, 2009 report within 10 days of receipt and, therefore, it could not
avail itself of the spinal surgery second opinion dispute resolution procedure
of section 4062(b).
Defendant argued that applicant is not entitled to surgery
because: (1) AD Rule 9792.6(o) requires that any narrative report requesting
authorization for proposed treatment "shall be clearly marked at the top that
it is a request for authorization"; (2) Dr. Dureza's February 25, 2009 fax was
the first written communication that was clearly marked at the top that he was
requesting authorization for spinal surgery and, therefore, Safeco's March 4,
2009 UR denial was timely; and (3) once Safeco issued its timely UR denial, it
was applicant's burden to initiate the spinal surgery second opinion process by
timely objecting to the UR denial, but he did not do so.
On May 13, 2009, the WCJ issued a Findings and Order determining
that applicant is entitled to lumbar spinal fusion surgery, concluding that
"Dr. Dureza's recommendation for lumbar spinal fusion surgery appears
reasonable and appropriate" and that Dr. Deutsch's UR report is "not
persuasive." Accordingly, the WCJ said the legal issues were "moot."
Safeco filed a timely petition for reconsideration that
essentially raises the same legal arguments it presented at trial, but also
asserts that Dr. Dureza's opinion is not substantial evidence.
Applicant filed an answer that essentially raises the same legal
arguments he made at trial, but also contends that Dr. Dureza's reports support
the finding of entitlement to spinal surgery.
We granted reconsideration to further study the factual and legal
issues presented.
II. DISCUSSION
In this opinion, we interpret certain provisions of section 4610
and section 4062, and we consider the interrelationship of these provisions
together with the application of relevant AD Rules, in the context of a
treating physician's request for authorization of spinal surgery.
A. Principles of
Construction
The fundamental rule of statutory construction is to effectuate
the Legislature's intent. (DuBois v. Workers' Comp. Appeals Bd.
(1993) 5 Cal.4th 382, 387 [58 Cal.Comp.Cases 286, 289]
(DuBois).) "When interpreting any statute, it is well-settled
that we begin with its words because they generally provide the most reliable
indicator of legislative intent." (Smith v. Workers' Comp. Appeals Bd.
(2009) 46 Cal.4th 272, 277 [74 Cal. Comp. Cases 575, 578]
(Smith) [internal quotation marks omitted].) "We are required
to give effect to statutes according to the usual, ordinary import of the
language employed ... ." (DuBois, 5 Cal.4th at p. 388 [58
Cal.Comp.Cases at p. 289]).) "If the language is clear and unambiguous, there
is ordinarily no need for judicial construction [and, therefore,] we presume
the Legislature meant what it said and the plain meaning governs."
(Smith, 46 Cal.4th at p. 277 [74 Cal. Comp. Cases at p. 578]
[internal quotation marks omitted]; see also DuBois, 5 Cal.4th
at pp. 387-388 [58 Cal.Comp.Cases at p. 289].) Nevertheless: "At the same time,
we do not consider ... statutory language in isolation. Instead, we examine the
entire substance of the statute in order to determine the scope and purpose of
the provision, construing its words in context and harmonizing its various
parts. Moreover, we read every statute with reference to the entire scheme of
law of which it is part so that the whole may be harmonized and retain
effectiveness." (San Leandro Teachers Ass'n v. Governing Bd. of San
Leandro Unified School Dist. (2009) 46 Cal.4th 822, 831 [internal
quotation marks and citations omitted]; see also Chevron U.S.A., Inc.
v. Workers' Comp. Appeals Bd. (Steele) (1999) 19
Cal.4th 1182, 1194 [64 Cal.Comp.Cases 1, 22] (Steele) ("The
words of the statute must be construed in context a and statutes or statutory
sections relating to the same subject must be harmonized, both internally and
with each other, to the extent possible.").)
Generally, the rules of statutory interpretation also govern the
interpretation of regulations (Cal. Drive-In Restaurant Ass'n v. Clark
(1943) 22 Cal.2d 287, 292.) Therefore, our duty is to effectuate a...
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