Whether an injured worker is entitled to a civil tort remedy(s) against a Utilization Review doctor even though the injured worker has received workers’ compensation benefits?

As the law continues to evolve in the field of “Utilization Review”, the first question almost always boils down to whether or not a suggested course of treatment is considered to fall under the “medical necessity” determination. When the medical necessity of a course of treatment is objected to, the WCAB maintains original jurisdiction over such matters. But what happens if the injured worker is not challenging a utilization review decision on its face but instead challenges its merits such as requiring a warning of possible side effects when a medication is denied through utilization review, is there such a duty? The following case presents an interesting twist on this issue.

In King v. Comppartners, Inc., 243 Cal.App.4th 685 (2016), the injured worker initially sustained a back injury AOE/COE and suffered anxiety and depression due to chronic back pain resulting from that injury for which he was prescribed a psychotropic medication known as Klonopin through workers’ compensation. Approximately two years later, utilization review was conducted and determined that the drug was unnecessary and decertified it, requiring the injured worker cease in the taking the drug immediately. Typically, however, like that of many pain killers, a person withdraws from such medication gradually rather than a sudden cessation. Klonopin was no different. Due to this rather abrupt cession, the applicant suffered four seizures resulting in additional physical injuries.

The applicant sued the Utilization Review organization and Utilization Review doctor for professional negligence, among other things. King argued that the Utilization Review doctor owed the injured worker a duty of care, which he breached by his failure to warn of the foreseeable consequences that a sudden cessation of Klonopin would cause (in this case the seizures). The court found that the Utilization Review physician despite the fact that he or she does not “see” and or otherwise “examine” the applicant, nevertheless, does have a physician patient relationship with the person whose medical records he or she reviews and thus, owes the applicant a duty of care. Palmer v. Superior Court, 103 Cal. App.4th 953 (2002). The court found that the utilization review physician breached his duty of care by failing to gradually wean off the applicant off of Klonopin, which were both the actual and proximate causes of the subsequent seizures and injuries.

The court found that to the extent that plaintiffs were faulting the Utilization Review physician for not communicating warning to the injured worker, these claims were not preempted by the exclusivity rule of workers’ compensation law because that warning was beyond “medical necessity” determination made by Utilization Review physician. The claims were preempted by the WCAB to the extent the worker was arguing that the medication was medically necessary until he was weaned, and thus that a particular number of pills should have been authorized for weaning, because that argument was a direct challenge to the medical necessity determination.