On November 19, 2009, the WCAB issued an en banc decision in Cervantes v. El Aguila Food Products laying out the procedure to follow when reviewing a request for spinal surgery. The Cervantes court expressly disapproved of specific holdings issued in Brasher v. Nationwide Studio Fund. The new rule is that a defendant cannot opt out of the utilization review (UR) process using only Labor Code §4062(b). It is now the defendant’s obligation to object under Labor Code §4062(b) to the surgery if UR denies authorization.

The treating physician’s Request for Authorization for surgery should be clearly indicated. It must be contained in the form of a PR-2 report, Doctor’s First Report or clearly noted at the top of a narrative report.

The employer must submit the treater’s report to UR and obtain authorization or denial within ten days. The reviewing UR physician cannot extend the review period stating that more information is needed. If more information is necessary, UR should simply deny authorization. If a denial is not issued within 10 days, the surgery must be approved.

If UR denies surgery, it is the defendant who must object under Labor Code §4062(b). The employee has no obligation to act. Unfortunately, the objection must be within the same 10 day period which stems from receipt of the treater’s request and must be on the form required by AD Rule 9788.1. The completed form must be postmarked within ten days of receipt of the treater’s request for authorization.

If a timely objection is issued, a represented applicant can proceed to an AME for the second opinion on the spinal surgery. Without agreement to an AME, the Administrative Director will randomly select a physician within five working days after receiving the defendant’s objection. The reporting requirements for the second opinion are governed by the 45 day period noted in Labor Code §4062(b).