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Chapter 4.5. Division of Workers' Compensation
Subchapter 1. Administrative Director--Administrative Rules
Article 5.1 . Spinal Second Opinion Procedure

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§9788.01. Definitions

As used in this Article:

(a) “Agreed second opinion physician” is a physician agreed upon by an employer and represented employee pursuant to Labor Code Section 4062 subdivision (b).

(b) “Completion of the second opinion process” occurs on the forty-fifth day after the receipt of the treating physician's report by the employer, unless the time has been extended by mutual written consent of the parties as provided in these regulations, or unless the time has been extended as provided in these regulations because the employee failed to attend an examination with the second opinion physician or agreed second opinion physician.

(c) “CPTã” means the procedure codes set forth in the American Medical Association's Physicians' Current Procedural Terminology (CPT) 1997, copyright 1996, American Medical Association.

(d) “Income” of a person includes the income of that person's business partner, physician member of the office of a group practice as defined in Labor Code section 139.3, spouse, cohabitant, and immediate family. Income of a second opinion physician does not include income from employment which had terminated prior to the time the physician was selected as a second opinion physician where there is no reasonable prospect of future employment.

(e) “Material familial affiliation” means a relationship in which one of the persons or entities listed in subdivision (c) of Labor Code section 4062 is the parent, child, grandparent, grandchild, sibling, uncle, aunt, nephew, niece, spouse, or cohabitant of the second opinion physician. For entities of the employer, insurer, physician, medical group, independent practice association, administrator, utilization review entity, facility, or institution mentioned in subdivision (c) of Labor Code section 4062, which are not persons, the familial affiliation shall be determined by considering the relationship of all of the officers, directors, owners and management employees, and individual claims administrators and supervisors to the second opinion physician.

(f) “Material financial affiliation” includes all of the following financial relationships between the second opinion physician and another person or entity listed in subdivision (c) of Labor Code section 4062, or parent or subsidiary or otherwise related business entity of a person or entity:

(1) One has a direct or indirect investment worth two thousand dollars or more in the other;

(2) One is a director, officer, partner, trustee, employee, or holds any position of management in the other;

(3) One has a direct or indirect interest worth two thousand dollars or more in fair market value in an interest in real estate owned or controlled by the other;

(4) One has received income of any kind, including gifts, from the other, aggregating three hundred dollars or more within the twelve months prior to the time of selection as a second opinion physician, except that the following income shall not be counted for this purpose:

A. income for services as a second opinion physician;

B. income for services as a treating physician;

C. income for services as an agreed medical examiner;

D. income for services as a panel Qualified Medical Evaluator selected for unrepresented employees;

E. income from services as a Qualified Medical Evaluator for represented employees.

F. income for services as a Qualified Medical Evaluator for an employer from the first five cases in any twelve month period for the same employer, carrier, or administrator.

(5) One has an employment or promise of employment relationship with the other.

(g) “Material professional affiliation” is any relationship in which the second opinion physician shares office space with, or works in the same office of, any of the other persons or entities listed in subdivision (c) of Labor Code section 4062.

(h) “Parent, subsidiary, and otherwise related business entity” have the same meanings as in Section 18703.1, Title 2, Division 6 of the California Code of Regulations.

(i) “Receipt of the treating physician's report” is the day it was first received by the employer, insurance carrier, or administrator.

(j) “Retired spinal surgeon” is a physician currently licensed in the State of California who once had, but no longer has, hospital privileges to perform spinal surgery described in Section 9788.2(c)(2). “Retired spinal surgeon” does not include a physician whose hospital privileges to perform spinal surgery were either surrendered by the physician or were terminated or not renewed by the hospital, after disciplinary charges were filed or after a disciplinary investigation was commenced.

(k) “Second opinion physician” is the physician who is randomly selected pursuant to subdivision (b) of Labor Code section 4062 to render the second opinion on a treating physician's recommendation of spinal surgery.

(l) “Spinal surgery” includes:

(1) any of the procedures listed in the Official Medical Fee Schedule denominated by the following CPTR procedure code numbers: 22100, 22101, 22102, 22103, 22110, 22112, 22114, 22116, 22210, 22212, 22214, 22216, 22220, 22222, 22224, 22226, 22548, 22554, 22556, 22558, 22585, 22590, 22595, 22600, 22610, 22612, 22614, 22630, 22632, 22800, 22802, 22804, 22808, 22810, 22812, 22830, 22840, 22841, 22842, 22843, 22844, 22845, 22846, 22847, 22848, 22849, 22850, 22851, 22852, 22855; 22899; 62287, 62292, 63001 through 63615; and,

(2) any other procedure, which is not listed in subdivision (l)(1), which is a non-diagnostic invasive procedure to the spine or associated anatomical structures to perform an operative or curative procedure which is not primarily an analgesic procedure; and,

(3) any procedure which involves the introduction of energy, a foreign substance, or a device that destroys tissue in the spine and/or associated structures, including nerves and disks, or involves the implantation of devices into the spine and associated structures, including nerves and disks, and which is not primarily an analgesic procedure;

(4) Notwithstanding subdivisions (1) through (3), “spinal surgery” does not include penetration of the body by needles in the performance of acupuncture by a practitioner whose license permits the performance of acupuncture, nor does “spinal surgery” include surgery which is required because of a bona fide medical emergency.

NOTE

Authority cited: Sections 133, 5307.1 and 5307.3, Labor Code. Reference: Sections 4062(b) and 4600, Labor Code.

HISTORY

1. New article 5.1 (sections 9788.01-9788.91) and section filed 7-2-2004 as an emergency; operative 7-2-2004 (Register 2004, No. 27). A Certificate of Compliance must be transmitted to OAL by 11-1-2004 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 7-2-2004 order, including amendment of subsection (l)(1), transmitted to OAL 11-1-2004 and filed 12-15-2004 (Register 2004, No. 51).

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