On November 19, 2009, in a unanimous en banc decision, the Workers' Compensation Appeals Board ("WCAB") addressed the issue of spinal surgery in relation to Utilization Review and second spinal opinions under Labor Code section 4062 in the case of Cervantes v. El Aguila Food Products and Safeco Insurance Co., et al, (2009) 74 Cal. Comp. Cases 1336. The California First District Court of Appeal affirmed Cervantes in its recent decision, Elliott v. Workers' Comp. Appeals Bd., 2010 Cal. App. LEXIS 235. In Cervantes the WCAB opined as follows:
1. When a written request for spinal surgery is made, the request must be submitted to Utilization Review.
2. If Utilization Review approves the requested spinal surgery, or if the Utilization Review is not timely, surgery must be authorized.
3. However, if the request for spinal surgery is timely submitted to Utilization Review and denied, the onus is on the defendant to make a Labor Code section 4062(b) objection, so that a secondary spinal surgery consultation can be performed.

The WCAB's holding in Cervantes is contrary to the holding of Brasher v. Nationwide Studio Fund (2006) 71 Cal Comp Cases 1282 (Appeals Board significant panel decision) to the extent that the court in Brasher held that if Utilization Review denied the spinal surgery request, the employee has the burden to object under Labor Code section 4062. The WCAB in Cervantes ruled contrarily that the burden is not on the employee to make a Labor Code section 4062 objection, but rather it is the employer who is obligated to object. Additionally, the Cervantes court disagreed with the holding in Brasher, regarding the timing of a Labor Code section 4062 objection. Under Brasher, when Utilization Review denies spinal surgery, the employee had 10 days from the time of the denial to object. The WCAB in Cervantes opined that Labor Code section 4062(b) allows 10 days to object to a spinal surgery determination from the time the treating physician's recommendation for surgery is received.

The Administrative Director issued a clarification on January 5, 2010, indicating that the 10-day time limit for both Utilization Review and a Labor Code section 4062 objection begins from the time a valid request for authorization is received. The Administrative Director noted that spinal surgery objections must be made using DWC form 233. Moreover, if a Utilization Review requires more information, the decision must be communicated to the requesting physician within 24 hours of decision, by phone, fax or written decision to the physician and their attorneys. The request for more information does not extend the allotted 10-days for serving the DWC form 233 objection to obtain a second opinion evaluation.

On February 25, 2010, the California 1st District Court of Appeal decided Elliott v. Workers' Comp. Appeals Bd., 2010 Cal. App. LEXIS 235, affirming Cervantes. Similar to Cervantes, the lower court in Elliott reviewed spinal surgery requests in light of Utilization Review per Labor Code section 4610 and the holding in Brasher. However, the court in Elliot found that pursuant to the holding in Brasher, the employee was obligated to seek a second spinal surgery opinion following a Utilization Review denial. Due to the discrepancies between the panel decision in Elliott and the en banc decision of Cervantes, the California First District Court of Appeal clarified the dispute resolution procedure in spinal surgery cases, explicitly rejecting Brasher and embracing Cervantes as the correct interpretation of the law.

The Elliott court held that the plain language of the statute requires that the employer must both complete its own utilization review and make its Labor Code section 4062(b) objection within 10 days of receiving the treating physician's report recommending spinal surgery. Thus, the Elliott Court confirmed that the onus is on the defendant to initiate the statute's spinal surgery second opinion procedure and a failure to do so timely will require the authorization of the spinal surgery. The Elliott Court also noted that in the case of disputed spinal surgeries only, the parties may not use the regular agreed medical evaluator/qualified medical evaluator AME/QME process under Labor Code section 4062(a) to resolve the dispute, but are constrained to the statutory spinal surgery second opinion. Further, the second opinion report must be concluded within 45 days after the receipt of the first spinal surgery request.

The impact of these rulings is that the timing for a Labor Code section 4062(b) objection and that of a Utilization Review determination must run concurrently, resulting in the defendant having to request a second surgical consultation immediately after the Utilization Review determination. If the defendant fails to timely object, the right to a second opinion report is lost and spinal surgery must be authorized.

In light of the foregoing, defendants must take note of the timing of the Utilization Review, the timing of a Labor Code section 4062(b) objection and request for a second spinal consultation. At first receipt of the request for surgery, a defendant should immediately submit the request to Utilization Review and be prepared to serve an objection within 10 days from the receipt of the request. Finally, a drop-dead date of 45 days after the receipt of the first spinal surgery request should be calendared for the entire consultative process and a defendant should be prepared to immediately file a declaration of readiness to proceed with a hearing before the WCAB if the second opinion report does not recommend surgery.