The California Supreme Court has now issued a decision in the closely watched case King v. CompPartners (see link to the decision below).
In its decision the California Supreme Court finds that the workers’ compensation system is the exclusive remedy of a worker harmed by the utilization review process. In doing so the court rejects an attempt to find a duty of care by the UR reviewer to the worker which could support a civil tort action.
Workers’ comp stakeholders had rightfully looked at this as a significant case.
Worker advocates and the applicant bar were cheered by the possibility that UR reviewers could be subject to tort actions.
In Mr. King’s case the UR reviewer apparently failed to recommend tapering of Klonopin. Thereafter, King suffered several seizures after going off the medication, which was not certified by the UR reviewer and not provided by the employer/insurer.
Employers and insurers saw the case as an attempt to create an end-run around workers’ comp. They feared that this would destroy the extensive system of treatment guidelines, utilization review and IMR that they have backed.
The employers and insurers have won this one. The court finds that the tort claims are pre-empted by the California workers’ comp system.
Two justices (Liu and Cuellar) did sign a concurring opinion which states that:
“But the undisputed facts in this case suggest that the workers’compensation system, and the utilization review process in particular, may not beworking as the Legislature intended.”
Liu and Cuéllar develop their concerns in detail, which I will quote here:
“For example, “decisions to modify or deny a treatment request must be performed by licensed physicians, who must make medical necessity determinations in keeping with a uniform schedule of medical treatment guidelines. [Citations.] As particularly relevant here, . . . ‘medical care shall not be discontinued until the employee’s physician has been notified of the decision and a care plan has been agreed upon by the physician that is appropriate for the medical needs of the employee. To the extent that . . . a utilization review organization fails to abide by a statutorily required part of the utilization review process, the . . . organization may be subject to administrative penalties. A physician who makes unsound professional judgments in this capacity is subject to professional discipline, which may include the loss of his or her license. And . . . employers are ultimately responsible for paying [compensatory] benefits to workers who suffer injuries as a result of the utilization review process.”
“The record in this case does not indicate whether defendants followed therelevant statutory and regulatory requirements in discontinuing Kirk King’s prescription for Klonopin. But the seizures King suffered as a result of his abrupt withdrawal from the drug provide grounds for skepticism that “a care plan . . . appropriate for the medical needs of the employee” was establishedbefore his prescription was discontinued. (Lab. Code, § 4610, former subd. (g)(3)(B), now subd. (i)(4)(c).) And even if defendants fully complied with the relevant requirements, it is questionable whether those requirements are enough to prevent similar injuries from occurring in the future. The “compensation bargain” that underlies the workers’ compensation system may allow for some “mistakes in the utilization review process.” But the balance that bargain strikes between employers’ interests and workers’ interests presumes that utilization review — which is conducted either by the worker’s employer or by an entity “stand[ing] in the shoes of [the] employer” — will be performed “with appropriate competence and care” (id. at p. 22). The limited record here raises doubts as to whether King’s utilization review was handled properly. The Legislature may wish to examine whether the existing safeguards provide sufficient incentives for competent and careful utilization review.”
So there will not be a viable tort action.
But, as noted by Liu and Cuellar, it may be time to look at building more safeguards into the UR process to make sure that workers are not harmed.
Here is the decision in King V. CompPartners: