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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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§9788.6. Examination by Second Opinion Physician or Agreed Second Opinion Physician.
(a) The second opinion physician or agreed second opinion physician may physically examine the patient-employee, if the second opinion physician or agreed second opinion physician determines in his or her sole discretion that an examination of the patient-employee is required, but nevertheless must physically examine the patient-employee before finally rendering a second opinion in all cases in which the second opinion physician or agreed second opinion physician disagrees with the recommendation of the treating physician. If there is to be a physical examination of the patient-employee, the second opinion physician or agreed second opinion physician shall schedule the examination, and shall, at least ten days in advance of the scheduled examination, send written notice of the date, time, and place of the examination to the employee, the employee's attorney, if any, and the party who objected to the recommended surgery.

(b) The employer shall, and the employee may, furnish all relevant medical records to the second opinion physician or agreed second opinion physician, including x-ray, MRI, CT, and other diagnostic films, and any medical reports which describe the employee's current spinal condition or contain a recommendation for treatment of the employee's spinal diagnoses. The employer shall serve all reports and records on the employee, except for x-ray, MRI, CT and other diagnostic films and for other records which have been previously served on the employee. If a special form of transportation is required because of the employee's medical condition, it is the obligation of the employer to arrange for it. The employer shall furnish transportation expense in advance of the examination. Except for during the examination, a second opinion physician or agreed second opinion physician shall have no ex parte contact with any party.

(1) In the case of a represented employee, except for matters dealing with the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, all communications between a second opinion physician or agreed second opinion physician and any party shall be in writing, with copies served on the other parties.

(2) In the case of an unrepresented employee, except for during the examination and for matters dealing with the scheduling of appointments, missed appointments, the furnishing of records and reports, and the availability of the report, there shall be no communications between any party and a second opinion physician until after the report has been served.

(c) If the employee fails to attend an examination with a second opinion physician or agreed second opinion physician, and the physician is unable to reschedule the employee's appointment before the 35th day after receipt of the treating physician's report, the time to complete the second opinion process shall be extended for an additional 30 days. If a second opinion physician is unable to schedule another examination within the 30 additional days, the Administrative Director, upon request, will select another second opinion physician.

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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