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SECOND OPINION IN A SERIOUS CASE

Neither SB 899 nor SB 863 changed Labor Code §4601, which provides, in relevant part, as follows: "The  employee is entitled, in any serious case, upon request, to the services of a consulting physician, chiropractor, or acupuncturist of his or her choice at the expense of the employer. The treatment shall be at the expense of the employer."  

"Serious" has not been defined, but certainly applies when surgery is being recommended and may well apply to other invasive treatments, medications with known dangerous side effects, or situations where non-industrial conditions may be involved that may be affected by the work injury or treatment for it, or vice versa.

Notably, SB 863 addresses treatment requests and subjects them to independent medical review (IMR), removing from the workers' compensation judges the issues of recommended current treatments. The request for a consultation does not appear to be "treatment" subject to utilization review or IMR.

SECOND OPINION IN MPN ON DIAGNOSIS OR TREATMENT

Under the medical provider network statutes, "If an injured employee disputes either the diagnosis or the treatment prescribed by the treating physician, the employee may seek the opinion of another physician in the medical provider network. If the injured employee disputes the diagnosis or treatment prescribed by the second physician, the employee may seek the opinion of a third physician in the medical provider network." LC §4616.3

Label Item Links Comments
Labor Code See subsection (a)  LC §4601  
Regulations/Rules If there is no medical provider network,  8 CCR 9718 might apply, at least in part. 8 CCR §9718  
Forms No official form. See below for suggested wording.  
Practice Tips Send defendant a letter: "Pursuant to Labor Code Section 4601(a), applicant believes that his/her case is a serious one and requests that the defendant provide the services of a consulting physician."

Select a second opinion doctor from the medical provider network, if there is one.

Do not let defendant highjack and subvert the process or attempt to turn the doctor into an  AME. Nor does the Primary Treating Physician have the right to select the consulting doctor unless the worker agrees.

The letter to the doctor should clearly state: "This is not an Agreed Medical Evaluation, but a consultation pursuant to Section 4601 of the California Labor Code, which provides, in relevant part, as follows:

"The employee is entitled, in any serious case, upon request, to the services of a consulting physician,...of his or her choice at the expense of the employer."

Note that changes in SB 863 concerning limiting AMEs and QMEs to opinions solely on future medical care do not apply to Labor Code §4601. Remind defendant that this is under §4601, not §4061.
 
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