Opinion
NOT TO BE PUBLISHED
WCAB No. SAC 304897
DAVIS, Acting P.J.
The Workers’ Compensation Appeals Board (Board) denied the motion for reconsideration of the Sacramento County Office of Education (employer) and adopted the decision of its hearing officer. This decision concluded that Kim Burnett (employee) had satisfied the condition in Labor Code section 4062 of obtaining a second medical opinion in favor of requested spinal surgery, triggering the employer’s obligation to authorize the surgery. The employer sought a writ of review. (§ 5950.) We issued the writ, and after plenary review we will annul the decision for want of substantial evidence to support its factual premise. (§ 5952, subd. (d).)
The employer is an authorized self-insurer. (See § 3700, subd. (c).)
Hereafter, undesignated section references are to the Labor Code.
Facts
We draw our facts primarily from the documentary evidence in the administrative record. In light of our resolution, our focus is narrow.
The employee suffered a compensable employment-related back injury in June 2001. The parties entered into a stipulated award in January 2003, which deemed the employee to have a permanent disability rating of 33 percent.
In October 2004 the employee’s secondary physician (see Cal. Code Regs., tit. 8, § 9785(a)) recommended that the employee have a discectomy, based on a March 2004 MRI scan and September 2004 discogram. He sought authorization for the spinal surgery from the employer’s insurance adjuster. The adjuster withheld approval pending the employee’s consultation with an “[a]greed second opinion physician.” (§ 4062, subd. (b); see Cal. Code Regs., tit. 8, § 9788.01(a).)
The treating physician from the time of the stipulated award was a chiropractor.
In the process of mutually agreeing on a physician for the second opinion, counsel for the employer sent letters in November 2004 and January 2005 to his counterpart that asserted, “I advised you that my client will abide by whatever the [agreed second doctor] says,” and “This is to confirm my recent conversations with your office concerning an agreed neurosurgeon to . . . provide an agreed-upon opinion whether surgery is indicated . . . .” He then sent a letter in February 2005 to Michael Robbins to notify him that “[t]o ensure that the issue of surgery gets resolved in an expeditious manner, the parties have agreed [on you for a second opinion] . . . and to abide by your conclusions.”
Dr. Robbins provided his report in April 2005. He agreed that the scan showed a slight protrusion of the disc consistent with the employee’s pain symptoms, but the discogram was inconsistent with her symptoms. “I am not at all sure that this disc is the source of all of her pain and problems, nor could I be completely confident that doing a discectomy on this patient is [g]oing to solve or cure all of her pain complaints. I think that the . . . disc is a nonfactor in the production of her pain . . . . [T]here are too many factors here which make me feel less than confident that a discectomy procedure is going to help her. I can understand [the secondary physician]’s viewpoint here in recommending discectomy since it appears that almost everything else has been tried for this woman. However, I think that the outcome is likely to be poor given the length of time she has had this and also the inconsistencies between test results and her complaints.”
Acknowledging that Dr. Robbins “questions the likelihood of any symptomatic benefit to Mrs. Burnett,” the secondary physician adhered to his recommendation of surgery in light of the “failure of prolonged conservative treatment in relieving her symptoms.” After a new MRI scan in May 2005, he again sought authorization for a discectomy. The employee’s attorney suggested the need for a supplemental report on the appropriateness of surgery, based on this adherence and the new MRI scan, which “indicate the need for another look.” The employer’s attorney and adjuster forwarded this information to Dr. Robbins.
In his request, he asserted that the employee was prepared to proceed with surgery. In her testimony, the employee asserted that in fact she was scared to death of surgery, and acceded to the recommendation only after her condition deteriorated in the fall of 2005.
In his July 2005 supplemental opinion, which is the crux of this appeal, Dr. Robbins stated, “Although the scan does seem to show a slight worsening of her disc protrusion, my problem with the patient continues to be the lack of congruity between symptoms and the different tests that she has been having. The discogram showed left-sided pain, yet her disc herniation seems to be on the right. There do not seem to be consistent symptom complaints of right leg pain by the patient. Additionally, I would think that the disc protrusion is a chronic degenerative condition . . ., and it is difficult to totally correlate this back to the patient’s initial supposed injury. Again, I could not fault [the secondary physician] if at this point in time he attempted to go in and take the disc out, but I would question whether the patient’s symptoms . . . and the objective findings on scans are all correlative in nature.”
Based on this second report from Dr. Robbins, counsel for the employer sent a letter to the employee’s attorney asserting that “between your client and the employer, Dr. Robbins’ opinions conclude the issue of surgery unless circumstances change” and reflected his understanding that the employee intended to seek treatment under her private medical insurance. He also sent a letter to the secondary physician with a copy of the report that noted, “[t]he parties agreed to a [sic] abide by a second opinion from Dr. Robbins.” The adjuster notified the secondary physician that it would not approve the surgery in light of the report.
Upon receipt of this information, the secondary physician returned the employee to the care of her treating physician: “Per the denial of services requested . . ., we are unable to treat your patient at this time.” As the employee testified, “He wrote a letter saying he could no longer treat me because they were not recognizing the fact that I needed surgery[.]”
The employee’s condition deteriorated in September 2005. After visiting the emergency room twice, she sought treatment with her former secondary physician under her private medical insurance. She also testified that her attorney told her “he had . . . done as much as he felt he could do,” and she would need a new lawyer if she desired further representation.
In October 2005, the employee obtained her present attorney, who requested temporary disability payments retroactive to the employee’s last day of work in September, noted that surgery was required on an urgent basis, and asserted the intent to file a petition for new and further permanent disability. (§ 5410.) Notably, new counsel never asserted a right to proceed to surgery based on a concurrence from Dr. Robbins as to the need for it. The employer denied the request for disability payments, and noted the status of Dr. Robbins as the agreed second opinion physician to whom the employer would resort on any new recommendation of spinal surgery.
The employee filed a petition in November 2005 with the Board, asserting that there was an increase in her permanent disability. Meanwhile, the employee’s new treating physician again recommended surgery in December 2005 because conservative treatment had failed. The employee’s attorney sent a demand for approval of surgery to the employer in January 2006, which noted that the procedure was already scheduled to occur in two weeks.
The various medical reports noted that this requested surgery previously had been denied.
The employer objected to the demand because Dr. Robbins had not yet offered an opinion, and reserved the right to deny liability for the cost of the scheduled surgery. The employer also filed an objection to the surgical recommendation with the Board, based on the absence of a second opinion. (See Cal. Code Regs., tit. 8, § 9788.1.)
The Board denied the insurer’s request for a randomly assigned second opinion physician.
The surgery took place as scheduled on January 24, 2006, under the employee’s private medical insurance. The employer denied payment for the treatment or for temporary disability benefits.
The employee’s attorney scheduled a consultation with Dr. Robbins and notified the employer. In response, the employer’s attorney asserted that it would not participate in a post hoc review of the necessity for the self-obtained surgery, as this lacked any statutory authority. The employer also contacted Dr. Robbins to cancel the proposed consultation. The employee’s attorney initiated Board proceedings on the disputed issues immediately thereafter.
According to the minutes of the May 2006 pretrial conference, the employee asserted that the employer’s failure to initiate Board proceedings to resolve the conflict of opinions on the need for spinal surgery rendered it liable for the costs of her surgery. The employer noted that on this issue it would produce evidence from its attorney and the employee’s prior attorney that there was agreement between them to accept the second opinion as binding.
Section 4062, subdivision (b) states that once the second doctor disagrees with a recommendation for spinal surgery, the employer must initiate Board proceedings (by means of a “declaration of readiness to proceed” (see Cal. Code Regs., tit. 8, § 10301(e)); in its implementation of this statutory requirement, the Board has mandated that this must take place “within 14 days of receipt of the second opinion physician’s report, unless the parties agree with the determination of the second opinion . . . .” (Id., § 9788.91(b).)
A Board hearing officer took testimony in July 2006 and issued a decision immediately afterward. He interpreted the July 2005 supplemental opinion as “reluctantly agree[ing] that the surgery was reasonable and necessary,” with the scheduling of the surgery delayed because of the employee’s fears. As a result, the employer was obligated to authorize the surgery without any need for another consultation with Dr. Robbins. The hearing officer also found that “Based upon this record, the applicant has been TTD since 9-29-05.” On the record, the hearing officer did not address the employee’s contention regarding the employer’s failure to initiate Board proceedings.
According to a declaration of counsel filed in response to our request for supplementary briefing after oral argument, the hearing officer rejected the claim off the record, and therefore the employer did not produce any evidence on the issue. Although this information is not part of the record before us, we include it to demonstrate that it would not serve any real purpose to remand the matter to the Board to develop the record on this point.
The employer filed for reconsideration. It objected that the hearing officer’s interpretation of the supplemental opinion was unreasonable when it was read as a whole with the original opinion. It pointed to the employee’s testimony (overlooked in the hearing officer’s summary of the evidence) that her prior attorney had not apparently believed there was any point in further efforts to obtain authorization for the surgery, which is inconsistent with an interpretation that Dr. Robbins had given any sort of “reluctant” approval. As a result, the employee’s decision to proceed on her own with surgery, whether considered pursuant to a reopening of the approval process or the initiation of a new request for surgery, lacked any valid approval before it took place. The employee did not request reconsideration of any issue. The hearing officer adhered to his interpretation of the supplemental opinion as an approval couched with “concerns.” The Board denied the petition for reconsideration (without any elaboration) and adopted the decision of its hearing officer.
Discussion
In pertinent part, section 4062 provides, “(b) The employer may object to a report of the treating physician recommending that spinal surgery be performed . . . . If the employee is represented by an attorney, the parties shall seek agreement . . . on a[n] . . . orthopedic surgeon or neurosurgeon to prepare a second opinion report resolving the disputed surgical recommendation. If no agreement is reached . . ., an orthopedic surgeon or neurosurgeon shall be randomly selected by the [Division of Workers’ Compensation] to prepare a second opinion report . . . . If the second opinion report recommends surgery, the employer shall authorize the surgery. If the second opinion report does not recommend surgery, the employer shall file a declaration of readiness to proceed. The employer shall not be liable for medical treatment costs for the disputed surgical procedure, whether through a lien filed with the [Board] or as a self-procured medical expense, or for periods of temporary disability resulting from the surgery, if the disputed surgical procedure is performed prior to the completion of the second opinion process . . . .” (Italics added.)
We first dispose of the employee’s effort to renew her claim that she was entitled to proceed with surgery because the employer did not timely initiate Board proceedings after Dr. Robbins issued his contrary opinion. We requested supplementary briefing after oral argument on this issue, posing the preliminary question of whether the record showed an agreement between the parties to abide by the opinion of Dr. Robbins (which under the Board’s regulation would relieve the employer of this obligation). The employer cited us to a number of points in the record from which we can infer such an agreement, and we have incorporated these in our statement of facts; neither the employee nor the Board have acknowledged them. Moreover, even if these indications of an agreement are equivocal, the employee still cannot prevail. Because the hearing officer failed to resolve this issue on the record after its identification in the minutes of the pretrial conference, the lack of an express finding means we must deem it to have been resolved against her. (§ 5815.) Additionally, her failure to request the Board to resolve the issue in a petition for reconsideration forfeits it in this court, because this deprived the Board of the opportunity to correct its hearing officer’s dereliction, and to allow the employer to develop the record in this regard. (§ 5904; U.S. Auto Stores v. Workmen’s Comp. App. Bd. (1971) 4 Cal.3d 469, 476-477; Green v. Workers’ Comp. Appeals Bd. (2005) 127 Cal.App.4th 1426, 1446.)
This appeal consequently turns on whether the process for obtaining a second opinion was complete before the employee underwent her spinal surgery in January 2006; if the employee acted prematurely, the employer is not liable for the costs of the treatment or for the temporary disability that resulted from the surgery. To the extent this is a factual issue, the Board’s determinations ordinarily are binding if there is substantial evidence in support. (Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1298.) However, where the facts are undisputed, the principle of substantial evidence does not limit the appellate court on any question of law that they present. (Dimmig v. Workmen’s Comp. Appeals Bd. (1972) 6 Cal.3d 860, 864-865; 2 Witkin, Summary of Cal. Law (10th ed. 2005) Workers’ Compensation, § 445(2), p. 1073.)
The decision apparently concluded that the entirety of the employee’s temporary total disability resulted from the surgery--even though it predated the surgery by several months--as the decision does not discuss any other basis for the award of disability. Nor do the parties focus separately on the award of temporary disability benefits by suggesting any basis other than the result of the surgery. Therefore, we accept this premise for purposes of this appeal.
The employer asserts that the Board’s interpretation of the supplementary second opinion is a procedural irregularity denying the employer’s right of due process because it amounts to a retroactive determination contrary to the expectations under which the parties had operated. Although this is an interesting point, we do not need to reach it because it necessarily assumes the correctness of the Board’s interpretation, a conclusion we reject. The Board’s interpretation of the second opinion as constituting a grudging recommendation of surgery is so entirely at odds with the plain text of the July 2005 report (especially considered in light of the April 2005 report) that it is an irrational inference. The gist of both reports is the belief that surgery would not help the employee because her symptoms were not consistent with the deformity in her disc, and a doubt whether the deterioration was work-related. The acknowledgment of a rational basis for the secondary physician to try surgery (namely, that all else had failed) does not mean that Dr. Robbins concurred that this was an appropriate basis under criteria for workers’ compensation to approve the surgery. This would render the remainder of the reports mere surplusage. We reject this illogical interpretation. (Bracken v. Workers’ Comp. Appeals Bd. (1989) 214 Cal.App.3d 246, 254-255.)
Neither party’s conduct reflected a belief that the July 2005 opinion recommended surgery, as the employer relied on it as a basis for denying approval and neither the employee’s prior or present counsel asserted the entitlement to approval that a second recommendation in favor of surgery would trigger (rather, the employee’s present attorney took the posture of the employee incurring new and further disability).
Therefore, the process had not been completed with a concurring second opinion. Rather, there were conflicting opinions, the second of which the parties had agreed to accept. Once the employee’s present attorney entered the picture, her effort to obtain authorization amounted to an attempt to either reopen the previous process or initiate a new process in light of the subsequent deteriorization, but we cannot in any event construe it as simply seeking to schedule a surgery authorized pursuant to a completed second-opinion process.
In summary, the employee underwent self-procured spinal surgery before the resolution of a renewed second-opinion process. As a result, the employer is not liable for the costs.
In light of our disposition, we necessarily reject the employee’s claim of entitlement to legal fees for a frivolous petition. (See § 5801.)
Disposition
The order of the Board is annulled and the matter remanded with directions to enter a new order consistent with this opinion. As this writ was necessary to correct error not attributable to either party, neither party shall recover costs of appeal. The employee’s request for reimbursement of her legal fees is denied.
We concur: RAYE, J., HULL, J.