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Utilization review under fire in state high court

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The California Supreme Court will weigh in on a lower court decision that would have a chilling effect on the state's workers compensation medical treatment approval process and expand potential liability for providers of utilization review.

The state high court last week agreed to review Kirk King v. CompPartners Inc. et al., in which Mr. King sued the Irvine, California-based managed care organization and its employee, Dr. Naresh Sharma, alleging negligence and other wrongdoing.

The 2014 suit filed in Riverside County Superior Court alleged the doctor didn't appropriately wean Mr. King off the sedative Klonopin prescribed for a 2008 work-related back injury, causing him to suffer seizures and additional injuries. It argued that California's Workers' Compensation Act did not pre-empt the suit since it disputed only the utilization reviewer's decision to “abruptly halt the medication,” not the determination that it was medically unnecessary.

Finding that “workers comp exclusivity may or may not apply,” the lower court asked California's 4th District Court of Appeal in Riverside to intervene.

Ruling that “nothing about (his) job is alleged to be the cause of the seizures,” the appellate court decided in January that Mr. King, whose employer was not identified, could bring a tort claim against CompPartners and Dr. Sharma. It also concluded that Dr. Sharma owed Mr. King a duty of care since a doctor-patient relationship exists between utilization reviewers and injured workers.

The appellate court ruling “threatens utilization review and the ability (of workers comp payers) to control medical care,” which is why insurance organizations, municipalities and self-insured employers “have filed requests for "depublication' of this decision,” Tiffany Speers, managing partner at law firm Adelson, Testan, Brundo, Novell & Jimenez in San Francisco, said in an email.

California's utilization review process says a claims adjuster must approve a request for treatment unless a physician determines it “medically unnecessary.” The independent medical review process was established to resolve challenges to utilization review decisions.

If the state Supreme Court upholds the appellate court's decision, health care providers might be reluctant to conduct utilization reviews that could prompt malpractice claims “for providing services that many believe are part and parcel to workers compensation claims and would be protected by the exclusive remedy,” said Albert B. Randall Jr., Baltimore-based principal at law Franklin & Prokopik P.C.

Mike Lemrick, vice president of utilization review at Coventry Workers' Comp Services in Dallas, said the relationship between utilization reviewers and injured workers already is considered somewhat “adversarial.”

“It is the role of the primary care physician who actually examines the claimant to determine whether weaning a drug is necessary and, if so, to determine the protocol,” William D. Naeve of law firm Murchison & Cumming L.L.P. in Irvine, California, who represents CompPartners, said in an email.

The ruling could lead to a “systemic change on how utilization review is conducted, including the potential for face-to-face examinations,” which Ms. Speers said could make it difficult to comply with timelines and lead to an “increase in utilization review costs that will ultimately be passed on to workers compensation payers.”

She also cautioned that duty of care could extend beyond denials of medical treatment to “medical care that is ultimately certified by the reviewing physician.”

According to California's Department of Industrial Relations, treatment decisions must be made within five business days in most instances, but the deadline may be extended or shortened depending on the case.

“Having the California Supreme Court review (King v. CompPartners) is a crucial step in the right direction for preserving the exclusive remedy,” Michael Krawitz, general counsel for York Risk Services Group Inc., which owns CompPartners, said in a statement.

Calling the case a “red herring,” Joseph Paduda, principal of Madison, Connecticut-based Health Strategy Associates L.L.C., said the fact that the state Supreme Court has agreed to hear the case “indicates to me there's a high likelihood that it will fix this.”

Mr. King's attorney declined comment.

This case isn't just about the potential for malpractice suits, higher utilization review costs or a shortage of utilization reviewers, sources said. Workers comp payers that choose not to use utilization review could cover unnecessary medical treatment and potentially endanger injured workers, Mr. Lemrick added.