On Spinal Surgery Requests
California Workers’ Compensation Defense practice offers few victories – but when they appear, they are sweet and make the whole effort worthwhile.
A recent decision from the Workers’ Compensation Appeals Board, Tomei v. Bay Alarm Company, addressed the application of California Code of Regulations section 9792.6(o). As some readers might recall, earlier this month your humble author did a post on what constitutes a procedurally proper request for medical treatment.
The skinny: A request for spinal surgery made in a narrative report must have the words “request for spinal surgery” clearly written by the surgeon across the top of the first page.
Applicant’s treating physician recommended spinal surgery, but the report in which the recommendation was made was in narrative form. Although CCR 8 § 9792.6(o) allows requests for treatments to be made this way, it also requires “the document [to be] clearly marked at the top that it is a request for authorization.”
This treating physician didn’t mark the narrative report as required by § 9792.6(o), so applicant’s attorney did this for him in blue ink! The report was sent to defendant with the words “request for treatment” hand-written across the top of the first page by the applicant’s attorney.
The WCAB held that the failure of the surgeon to clearly mark that the narrative report is a request for spinal surgery prejudices the defendant. Therefore, the letter of the law applies.
In California Workers’ Compensation practice, defendants are given relatively little time to deal with spinal surgery requests. The lesson here is that, when the physician requesting the treatment does not follow proper procedures, the defendant is shielded by the law.
As a habitual cynic, I can tell you that it is easy to become a perpetual cynic if you don’t keep your pessimism in check. Cases like this one serve as an example of why it is important to fight for every inch of the relatively limited territory the law affords defendants.