Cal. Code Regs. tit. 8 § 9767.7

Current through Register 2024 Notice Reg. No. 44, November 1, 2024

Section 9767.7 - Second and Third Opinions

(a) If the covered employee disputes either the diagnosis or the treatment prescribed by the primary treating physician or the treating physician, the employee may obtain a second and third opinion from physicians within the MPN. During this process, the employee is required to continue his or her treatment with the treating physician or a physician of his or her choice within the MPN.

(b) If the covered employee disputes either the diagnosis or the treatment prescribed by primary treating physician or the treating physician, it is the employee's responsibility to:

(1) inform the person designated by the employer or insurer that he or she disputes the treating physician's opinion and requests a second opinion (the employee may notify the person designated by the employer or insurer either in writing or orally);

(2) select a physician or specialist from a list of available MPN providers;

(3) make an appointment with the second opinion physician within 60 days; and

(4) inform the person designated by the employer or insurer of the appointment date. It is the employer's or insurer's responsibility to (1) provide at least a regional area listing of MPN providers and/or specialists to the employee for his/her selection based on the specialty or recognized expertise in treating the particular injury or condition in question and inform the employee of his or her right to request a copy of the medical records that will be sent to the second opinion physician; (2) contact the treating physician, provide a copy of the medical records or send the necessary medical records to the second opinion physician prior to the appointment date, and provide a copy of the records to the covered employee upon request; and (3) notify the second opinion physician in writing that he or she has been selected to provide a second opinion and the nature of the dispute with a copy to the employee. If the appointment is not made within 60 days of receipt of the list of the available MPN providers, then the employee shall be deemed to have waived the second opinion process with regard to this disputed diagnosis or treatment of this treating physician.

(c) If, after reviewing the covered employee's medical records, the second opinion physician determines that the employee's injury is outside the scope of his or her practice, the physician shall notify the person designated by the employer or insurer and employee so the employer or insurer can provide a new list of MPN providers and/or specialists to the employee for his/her selection based on the specialty or recognized expertise in treating the particular injury or condition in question.

(d) If the covered employee disagrees with either the diagnosis or treatment prescribed by the second opinion physician, the injured employee may seek the opinion of a third physician within the MPN. It is the employee's responsibility to:

(1) inform the person designated by the employer or insurer that he or she disputes the treating physician's opinion and requests a third opinion (the employee may notify the person designated by the employer or insurer either in writing or orally);

(2) select a physician or specialist from a list of available MPN providers; and

(3) make an appointment with the third opinion physician within 60 days; and

(4) inform the person designated by the employer or insurer of the appointment date. It is the employer's or insurer's responsibility to (1) provide at least a regional area listing of MPN providers and/or specialists to the employee for his/her selection based on the specialty or recognized expertise in treating the particular injury or condition in question and inform the employee of his or her right to request a copy of the medical records that will be sent to the third opinion physician; and (2) contact the treating physician, provide a copy of the medical records or send the necessary medical records to the third opinion physician prior to the appointment date, and provide a copy of the records to the covered employee upon request; and (3) notify the third opinion physician in writing that he or she has been selected to provide a third opinion and the nature of the dispute with a copy to the employee. If the appointment is not made within 60 days of receipt of the list of the available MPN providers, then the employee shall be deemed to have waived the third opinion process with regard to this disputed diagnosis or treatment of this treating physician.

(e) If, after reviewing the covered employee's medical records, the third opinion physician determines that the employee's injury is outside the scope of his or her practice, the physician shall notify the person designated by the employer or insurer and employee so the MPN can provide a new list of MPN providers and/or specialists to the employee for his/her selection based on the specialty or recognized expertise in treating the particular injury or condition in question.

(f) The second and third opinion physicians shall each render his or her opinion of the disputed diagnosis or treatment in writing and offer alternative diagnosis or treatment recommendations, if applicable. Any recommended treatment shall be in accordance with Labor Code section 4616(e). The second and third opinion physicians may order diagnostic testing if medically necessary. A copy of the written report shall be served on the employee, the person designated by the employer or insurer, and the treating physician within 20 days of the date of the appointment or receipt of the results of the diagnostic tests, whichever is later.

(g) The employer or insurer shall permit the employee to obtain the recommended treatment within the MPN or if the MPN does not contain a physician who can provide the recommended treatment, the employee may choose a physician outside the MPN within a reasonable geographic area. The covered employee may obtain the recommended treatment by changing physicians to the second opinion physician, third opinion physician, or other MPN physician.

(h) If the injured covered employee disagrees with the diagnosis or treatment of the third opinion physician, the injured employee may file with the Administrative Director a request for an MPN Independent Medical Review, pursuant to Labor Code sections 4616.3, 4616.4 and title 8, California Code of Regulations sections 9768.1 et seq.

Cal. Code Regs. Tit. 8, § 9767.7

1. New section filed 11-1-2004 as an emergency; operative 11-1-2004 (Register 2004, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-1-2005 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 2-28-2005 as an emergency; operative 3-1-2005 (Register 2005, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-29-2005 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 6-20-2005 as an emergency; operative 6-29-2005 (Register 2005, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-27-2005 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 6-20-2005 order, including amendment of section, transmitted to OAL 7-29-2005 and filed 9-9-2005 (Register 2005, No. 36).
5. Amendment of subsections (b), (d) and (g)-(h) and amendment of NOTE filed 8-27-2014; operative 8-27-2014 pursuant to Government Code section 11343.4(b)(3) (Register 2014, No. 35).

Note: Authority cited: Sections 133 and 4616(h), Labor Code. Reference: Sections 4616(a) and 4616.3, Labor Code.

1. New section filed 11-1-2004 as an emergency; operative 11-1-2004 (Register 2004, No. 45). A Certificate of Compliance must be transmitted to OAL by 3-1-2005 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 2-28-2005 as an emergency; operative 3-1-2005 (Register 2005, No. 9). A Certificate of Compliance must be transmitted to OAL by 6-29-2005 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 6-20-2005 as an emergency; operative 6-29-2005 (Register 2005, No. 25). A Certificate of Compliance must be transmitted to OAL by 10-27-2005 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 6-20-2005 order, including amendment of section, transmitted to OAL 7-29-2005 and filed 9-9-2005 (Register 2005, No. 36).
5. Amendment of subsections (b), (d) and (g)-(h) and amendment of Note filed 8-27-2014; operative 8/27/2014 pursuant to Government Code section 11343.4(b)(3) (Register 2014, No. 35).