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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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§9788.5. Random Selection of Second Opinion Physician.

(a) Within five (5) working days of the Administrative Director's receipt of an objection to a recommendation for spinal surgery, the Administrative Director shall randomly select a physician from those listed physicians located within a thirty (30) mile radius of the employee's address, provided that six physicians are located within that radius; and if six are not located within that radius, using ever increasing radii, until at least six (6) physicians are located from which a random selection may be made. The Administrative Director shall not include among the six physicians any physician that the Administrative Director has determined, from the information submitted to the Administrative Director by the physician and by the employer objecting to the treating physician's recommendation, has a material affiliation prohibited by subdivision (c) of Labor Code section 4062. The selected second opinion physician shall notify the Administrative Director if he/she has a material professional, familial, or financial affiliation with any of the persons or entities listed in subdivision (c) of Labor Code section 4062, within five working days of the physician's receipt of notification of selection. Upon such notification, the Administrative Director shall immediately select a replacement second opinion physician.

(b) Until the Administrative Director shall have a computerized system for random selection of physicians, the Administrative Director shall manually make random selections as in subdivision (a), except that instead of using an initial thirty mile radius, the Administrative Director shall select from those physicians located within the same zipcode as the employee's address, or if there are not at least six physicians located within that zipcode, then additional adjacent zipcodes shall be used until there are at least six physicians found within the geographic area of selection.

(c) Upon selection by the Administrative Director, the second opinion physician shall, unless the physician notifies the Administrative Director of a material professional, familial, or financial affiliation, notify the parties within five working days of the physician's receipt of notification of selection of the date and time of any appointment for examination of the employee. If the physician arranges an appointment with the employee by telephone, the physician shall thereafter send the employee a written notice containing the details of the appointment.

(d) Within ten days of the selection of a second opinion physician, either the employer or the employee may object to the selection on the basis that the second opinion physician has a material professional, familial, or financial affiliation with any of the persons or entities listed in subdivision (c) of Labor Code section 4062, by filing a written objection with the Administrative Director and serving the other parties. The Administrative Director may either sustain the objection, in which case a new selection shall be made, or deny the objection.

(e) The Administrative Director shall exclude from the selection process any physician who has notified the Administrative Director of unavailability pursuant to Section 9788.45.

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 subsection (c) and new subsection (e), transmitted to OAL 11-1-2004 and filed 12-15-2004 (Register 2004, No. 51).

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