As a boy growing up in San Francisco, I would, on occasion, experience a relatively rare phenomenon – a cloudless night.  On those nights, one could stare into the sky and ponder all of life’s imponderables.  Does each chicken have its own personality?  What happens to the paper that is cut by scissors?  Do employers have to pay for spinal surgery when the second opinion physician has not submitted his report within the 45 days allotted by Labor Code section 4062?

Many years later, I still don’t have the answer to my questions.  Not even after the split panel decision of Christine Krause v. State of California, which granted defendant’s petition for reconsideration and rescinded a workers’ compensation Judge’s order that the employer provide spinal surgery.  WCDefenseCA sends its thanks to the kind and thoughtful reader who sent in this panel opinion!  If you have an interesting panel opinion to share, please shoot it over to: gregory@grinberglawoffice.com.

The basic story is as follows – the primary treating physician requested authorization for spinal surgery, and the defense promptly submitted it to utilization review and received a timely non-certification letter.  A second opinion doctor was assigned, less than two weeks later issued a report indicating that he was inclined to disagree with the treating physician’s recommendations, but wanted to see additional medical information.

The additional medical information, including an MRI and an evaluation of applicant, was still not enough.  The physician wanted to do a new MRI because the old one “was of low quality and seemed to indicate ‘that there was something wrong at just about every level.’”  Bear in mind, dear readers, that at the time of the evaluation, the second opinion physician had been appointed for 84 days.  Thirty-one days later (a total of 115 days after the appointment) applicant’s attorney filed a declaration of readiness to proceed.

At the hearing, still without a report from the second opinion physician, the WCJ found that the report had been delayed through no fault of either of the parties, and that the defendant was obligated to provide the spinal surgery.  In other words, “sorry about your luck, now fork over the money.”

The defendant, feeling somehow wronged by the relatively arbitrary assignment of medical expense, petitioned the Workers’ Compensation Appeals Board for reconsideration.  And reconsideration the defense received!

The two-commissioner majority held that when, as in this case, the delay is through no fault of the defense, the defense cannot be made liable for the consequences of the physician’s slow response.  Nor was the WCAB impressed with applicant’s “claimed concern about timeliness,” as the 45-day mark came and went seventy days before applicant filed the declaration of readiness.

The dissent, however, would have assigned all blame to the defense, reasoning that the burden is always and entirely on the defense to obtain timely reports, whether UR or second opinion.

As panel opinions are not binding precedent, split panel decisions are even less binding.  But, it is still reassuring to know that, when we arrive at the various Board venues and empty our pockets for the metal detectors, employers and insurers are not expected to empty theirs as a matter of course.  (Yes, San Francisco and Oakland, I’m shaking my head with disapproval at you!)