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A California Supreme Court ruling that firmly preserved the “grand bargain” at the heart of the workers compensation system was a major source of relief for stakeholders, but it has heightened attention on the duty of care owed by utilization review companies and their physicians to injured workers, namely with respect to weaning them off of long-term prescriptions.
Such treatment issues are becoming increasingly important as California works to curb opioid addiction among injured workers through a workers comp drug formulary launched on Jan. 1, with additional drugs recently added to the list of medications that require a utilization review after the first, limited prescription.
In August, the state Supreme Court unanimously ruled in Kirk King et al. v. CompPartners Inc. et al. that California’s workers compensation system provided the exclusive remedy for an injured worker who filed suit after a physician reviewer working for the utilization review management company determined that the worker’s prescription for Klonopin to treat his anxiety and depression following a work injury was medically unnecessary and decertified the prescription, according to the ruling.
“Ultimately, it was a very positive thing that came down for us in the insurance industry because this could have opened up a can of worms that would have allowed everybody to go after the UR doctors and vendors,” said Lynda Meyer-Whitehead, Los Angeles-based senior vice president and risk management consultant for Lockton Cos. LLC. “Without it, I don’t know how work comp would survive.”
The decision “just confirmed that the exclusivity provisions are broad and they are going to capture conduct that might otherwise be outside the realm of the Workers Compensation Act,” said Billie Wenter, San Francisco-based of counsel for Baker & McKenzie LLP.
“The utilization review company and its physicians got the benefit of the workers compensation exclusivity rule. I think it’s clear from the decision that even if those entities weren’t specifically addressed in prior case law as examples of entities that would be covered, the court was willing to extend the ruling farther.”
But by allowing utilization reviewers “almost a level of immunity for the decisions they make, they don’t have to pay quite as close attention to them,” said Eric Farber, CEO of Farber & Co. and founder of the Pacific Workers’ Compensation Law Center in Oakland, California.
The prescription drug at the heart of the case — Klonopin — has sedative, hypnotic, anxiolytic, anticonvulsant and muscle relaxant properties, is usually used to treat anxiety disorders and can lead to addiction when used for long periods, according to medical experts. But the decertification of Mr. King’s Klonopin prescription did not provide for a weaning regimen nor did the physician reviewer warn Mr. King of the risks of abruptly ceasing Klonopin, according to the ruling. Mr. King immediately stopped taking the medication and suffered four seizures.
“Klonopin is addictive,” Ms. Meyer-Whitehead said. “It’s like Xanax. You can’t just stop it. You have to wean off it. The insurance company, along with the UR folks, needed to look at this a little differently and say maybe it’s not appropriate to continue in the future, but we have to figure out a way to get him off of it.”
Opioids raise the same issues and concerns with injured workers’ prescriptions being terminated and “there should be a standard protocol for cutting it off,” Mr. Farber said.
There is an appeals process if a workers compensation determination based on the drug formulary doesn’t match with what the primary care doctor thinks is in the best interest of the patient, said Michael Krawitz, New York-based executive vice president and general counsel of York Risk Services Group, the owner of CompPartners.
“Think about it from a fairness perspective,” he said. “The doctors that are doing the medical reviews, they never see the patient. They’re not allowed to see the patient. They’re not allowed to have a full patient history. They get the limited information relevant to the particular thing that they’re reviewing. Just from a system functioning perspective and from what makes sense, it just seems right to us that the primary care doctor is responsible and should be responsible for those kinds of decisions and the system should be responsible for allowing those kinds of appeals and it does.”
While the utilization review company and its physician prevailed, the dispute is intensifying attention to their responsibilities to injured workers and the consequences for failing to do so, experts say.
“Even though claimants weren’t able to get what they wanted and pursue their claims against the physicians and the utilization review company, certainly having to participate in litigation and an appeal to the Supreme Court is costly and time-consuming so there’s some deterrent just in that alone,” Ms. Wenter said. “It seems like it should be pretty eye-opening one way or the other that if you’re going to make a recommendation about medication that you should make sure you’re considering the potential consequences of your recommendation. And I hope that at a minimum that’s what the physician and the utilization review company were able to take away from it and would exercise greater care in the future.”
“Certainly, it has raised awareness in the UR community — they won’t be so quick to pull the trigger and say no when they see certain drugs, and it will start a dialogue that needs to happen,” Ms. Meyer-Whitehead said.
The California Division of Workers’ Compensation’s recent changes to the drug formulary specifically list several newly named drugs as prohibited for pain management — baffling experts who say some of these drugs are unusual for treating pain anyway.