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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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§9788.1. Employer's Objection To Report Of Treating Physician Recommending Spinal Surgery.

(a) An objection to the treating physician's recommendation for spinal surgery shall be written on the form prescribed by the Administrative Director in Section 9788.11. The employer shall include with the objection a copy of the treating physician's report containing the recommendation to which the employer objects. The objection shall include the employer's reasons, specific to the employee, for the objection to the recommended procedure. The form must be executed by a principal or employee of the employer, insurance carrier, or administrator.

(b) Declarations.

(1) Declaration as to receipt of treating physician's recommendation.

The employer's objection shall include one of two versions of a declaration made under penalty of perjury regarding the date the report containing the treating physician's recommendation was first received by the employer, employer's insurance carrier, or administrator, in the format of the form prescribed by Section 9788.11.

Version A of the declaration shall be used if the declarant has personal knowledge of all the facts. Version B of the declaration may be used if the recipient employer, insurance carrier or administrator has a written policy of date-stamping every piece of mail on the date it was delivered to its office, this policy is consistently followed, the declarant is knowledgeable about the policy, and the report bears a legible date stamp showing when it was received in the office.

The declaration must be executed by a principal or employee of the employer, insurance carrier, or administrator.

(2) Declaration as to service of objection.

The employer's objection shall include a declaration made under penalty of perjury, in the format of the form prescribed by Section 9788.11 as to the date and time the objection was served, and the manner in which the objection was served.

The declaration must be executed by a principal or employee of the employer, insurance carrier, or administrator.

(c) Service of Objection.

(1) The employer shall serve the objection and the report containing the treating physician's recommendation on the Administrative Director, the employee, the employee's attorney, if any, and on the treating physician within 10 days of receipt of the treating physician's report containing the recommendation. An objection which is mailed to the Administrative Director and is received more than ten days after the date of receipt of the treating physician's report is untimely unless it bears a postmark date no later than the tenth day after the date of receipt of the treating physician's report. The employer shall serve the original of the objection on the Administrative Director.

(2) Service on the Administrative Director shall be by mail or physical delivery. Service on the employee, employee's attorney, and treating physician shall be by mail or physical delivery or, if prior consent has been obtained from the recipient to be served by fax, may be by fax.

(d) If after an employer has served the objection on the Administrative Director, either the employer and a represented employee agree to an agreed second opinion physician or the employer withdraws its objection to the treating physician's recommendation for spinal surgery, the employer shall notify the Administrative Director within one working day of the agreement or withdrawal of objection. This notification may be by fax.

NOTE

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

HISTORY

1. New 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 section, transmitted to OAL 11-1-2004 and filed 12-15-2004 (Register 2004, No. 51).

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