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Court Clarifies Procedure for Spinal Surgery Disputes in Workers’ Compensation Cases 

The Workers’ Compensation Appeals Board recently heard an appeal and issued an en banc decision in the Cervantes case, and in doing so clarified the procedure that the insurance carrier must follow to dispute requests by a treating doctor for spinal surgery.   This decision is favorable to injured workers, and will hopefully provide some relief to those who have been suffering undue delays in obtaining much-needed spine surgery. 

En Banc decisions are to be followed by Workers’ Compensation judges unless the case is overturned by a higher appeals court.  The defendant in the Cervantes case did file an appeal, and it remains to be seen if the Court of Appeals will grant or reject it.

The issue of spine surgery disputes arises under Labor Code Section 4062(b), part of the 2004 reform legislation. This section allows for an insurance carrier to dispute a doctor’s request for spinal surgery and ask a panel doctor from the State Medical Director for a second opinion.

Based on the Cervantes case, the insurance carrier now has only 10 days from receipt of  the request by the physician for spine surgery authorization to either authorize surgery or dispute the need for it. If the request for a second opinion on the disputed spine surgery is not completed within the 10-calendar-day time limit, the insurance carrier is required to authorize the requested spinal surgery. If the need for surgery is disputed, the law requires that the second-opinion doctor must issue a report resolving the dispute within 45 days of the treating physician’s request for surgery authorization.   

The Cervantes opinion has revoked the prior procedure as indicated in the Brasher case, which put undue burden on the injured worker to initiate the request for the second spinal surgery opinion.

The important public policy upheld in the Cervantes case is that spine surgeries are serious, and if there is a need for the surgery, any disputes regarding such a need be resolved quickly, ensuring the best chance for recovery.

Again, we believe the Cervantes opinion is the proper interpretation of Labor Code Section 4062(b), which the Legislature created to avoid unreasonable delays regarding requests for spinal surgeries. 

To be sure that your rights are properly enforced, and to limit the unfortunate delays in receiving medical care that have occurred since the reform legislation, it is more important than ever that injured workers be represented by skilled counsel who is knowledgeable regarding enforcement of workers’ rights under the Labor Code.

If you would like to talk to an attorney about your case or learn more about your legal options, please contact us at 213-739-7000.


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