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Comp’s exclusive remedy shields utilization reviewer from tort claims

Comp’s exclusive remedy shields utilization reviewer from tort claims

The California Supreme Court ruled that the state’s workers compensation system provided the exclusive remedy for an injured worker whose utilization reviewer denied a treating physician’s request to continue prescribing certain medication.

In Kirk King et al. v. CompPartners Inc. et al., Mr. King alleged that the utilization reviewer caused additional injuries by denying the doctor’s request without authorizing a weaning regimen or warning him of the possible side effects of abruptly ceasing the medication, but the high court ruled on Thursday that the workers compensation law provides the exclusive remedy for the employee’s injuries and pre-empts the employee’s tort claims.

In February 2008, Mr. King sustained a back injury while he was at work and suffered chronic pain, which in turn caused him anxiety and depression, according to the ruling. In July 2011, a mental health professional prescribed several psychotropic drugs, including Klonopin, to treat these latter conditions.

Dr. Naresh Sharma, an anesthesiologist employed by utilization review management company CompPartners Inc., conducted a utilization review of Mr. King’s Klonopin prescription in July 2013 and determined that Klonopin was medically unnecessary and decertified the prescription. The decertification did not provide for a weaning regimen nor did Dr. Sharma warn Mr. King of the risks of abruptly ceasing Klonopin, according to the ruling. Mr. King immediately stopped taking the medication and suffered a series of four seizures.

In September 2013, Mr. King sought a new prescription for Klonopin, according to the ruling. A month later, Dr. Mohammed Ashraf Ali, a psychiatrist employed by CompPartners, performed a utilization review of the prescription. Dr. Ali also determined that Mr. King’s Klonopin prescription was medically unnecessary and did not authorize a weaning regimen or warn Mr. King of the risks of abruptly stopping the medication.

In October 2014, Mr. King and his wife filed a complaint in California Superior Court against CompPartners and Dr. Sharma, among others, asserting claims of negligence, professional negligence, intentional and negligent infliction of emotional distress and loss of consortium. The defendants argued that the Kings’ claims were pre-empted by the workers comp statute. In the alternative, they argued that the negligence claims failed because Dr. Sharma owed no duty of care to Mr. King. The trial court agreed with both arguments and sustained the demurrer without leave to amend.

The 4th California District Court of Appeals, 2nd Division affirmed the order sustaining the demurrer, but reversed the denial of leave to amend. The appellate court agreed with the defendants that the Kings’ challenge to Dr. Sharma’s decision to decertify the Klonopin prescription is subject to the exclusive remedies of the workers compensation system. But on the failure to warn claim, the appellate court concluded the claim is not pre-empted because it does not directly challenge Dr. Sharma’s medical necessity determination. Finally, the appellate court held that Dr. Sharma owed Mr. King a duty of care, though it also held that the scope of the duty could not be determined on the basis of the facts alleged in the Kings’ complaint.

The case subsequently was filed with the California Supreme Court.

“This was error — focusing on Dr. Sharma’s failure to warn does not alter the analysis,” the high court said in its ruling. “On either theory of liability, King’s injury arose out of and in the course of utilization review — a statutorily required part of the workers compensation claims process to which he would not have been subject had he not suffered a work-related back injury. The injury is thus compensable under the (Workers Compensation Act).”

The utilization review provisions of the workers comp act govern not only the substance of a utilization review decision, whether based on medical necessity or otherwise, but also the content of the responses communicating the decision, according to the ruling.

“Our understanding of the utilization review statute’s purpose may have differed if the legislature had failed to provide any such safeguards, incentives or remedies,” the Supreme Court stated in its ruling. “Even now, those safeguards and remedies may not be set at optimal levels, and the legislature may find it makes sense to change them. Nonetheless, they are sufficient to support our conclusion … that any presumption against the implied repeal of common law tort remedies otherwise available to protect people from negligent or botched utilization review procedures is rebutted in this case.”

The case did not challenge the exclusive remedy as it applied to the employer, but whether an outside company could be held liable for making a wrong decision, which the high court decided it could not despite no language in the workers comp statute to that effect, said Christopher Lockwood, a partner with Arias & Lockwood and attorney for the plaintiff.

“The Supreme Court gets the last word and they decided for policy reasons that they were going to rewrite the statute,” he said. “This is the end of the lawsuit.”


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