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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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§9788.4. Removal of Physicians from the Spinal Surgery Second Opinion Physician List.



(a) The Administrative Director may remove from the list any physician whenever the Administrative Director learns:

(1) That the physician no longer meets the qualifications to be on the list; or

(2) That the California Medical Board, or any other state medical board from whom the physician is licensed, has filed any accusation against the physician; or

(3) That the physician, having been notified by the Administrative Director of the physician's selection to render a second opinion in any case, has not served the second opinion report in that case within forty-five days after the receipt of the treating physician's report by the employer, unless the employee failed to attend an examination; or

(4) That the physician's application to be on the list contained statements which were not true; or

(5) That the physician has at any time failed to disclose to the Administrative Director that the physician had a material professional, familial, or financial affiliation with any of the persons or entities listed in subdivision (c) of Labor Code section 4062 in any case in which the physician had been selected as a second opinion physician.

(6) That the physician has declined to accept assignment as a second opinion physician at any time except during a period for which the physician had notified the Administrative Director of unavailability per Section 9788.45.

(7) That the physician has filed notifications of unavailability for more than 120 days of any one year period. The first one year period shall commence with the date the physician was added to the list of spinal surgery second opinion physicians by the Administrative Director.

(b) Upon removal of a physician from the list, the Administrative Director shall advise the physician by mail of the removal, the Administrative Director's reasons for removal, and the right to request a hearing on the removal.

(c) A physician who has been mailed a notice of removal from the list may, within 30 days of the mailing of the notice of removal, request a hearing by filing a written request for hearing with the Administrative Director. If a written request for hearing is not received by the Administrative Director within 30 days of the mailing of the notice of removal, the physician shall be deemed to have waived any appeal or request for hearing.

(d) Upon receipt of a written request for hearing, the Administrative Director shall serve an accusation, as provided in Government Code section 11503.

(e) Hearings shall be held under the procedures of Chapter 5 of Part 1 of Division 3 of Title 2 of the Government Code (commencing with section 11500) and the regulations of the Office of Administrative Hearings (California Code of Regulations, Title 1, Division 2).

(f) Failure to file timely a mailed notice of defense or failure to appear at a noticed hearing or conference shall constitute a waiver of a right to a hearing.

(g) A physician who has been removed from the list may petition for reinstatement after one year has elapsed since the effective date of the decision on the physician's removal. The provisions of Government Code section 11522 shall apply to such petition.

NOTE

Authority cited: Sections 133 and 5307.3, Labor Code; and Sections 11400.20, 11415.10 and 11522, Government 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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