WCDefenseCA

Good morning dear readers!

Your humble blogger certainly missed you and sincerely apologizes for his absence.  Were you totally and hopelessly lost without me?  Have my years of diligent posts made you strong and resilient?  Or, maybe… just maybe… you didn’t notice my absence because these posts are ending up in your spam file…?

Anywho, I wanted to take some time to digest the California Supreme Court’s ruling in the matter of King.  You know the one… that case everyone has been discussing lately?  In case you think you’ve been overhearing a whole lot of checkers games lately (“King me!”) you haven’t.

The California Supreme Court, with a drop of the gavel and a stylish twirling of black robes, has crushed the hopes of many an applicant attorneys.  With one foul swoop, visions of vacation homes and eerily silent and inexcusably awesome electric cars vanished as SCOC (Supreme Court of California for those of you not hip to the lingo of the “cool” lawyers) ruled that not only does a Utilization Review doctor not owe a duty of care to an applicant, any harm resulting from Utilization Review fallout is confined to the workers’ comp system we all know and love.

So, with that in mind, let me set the stage for you as I relate this King of all blogposts (see what I did there?).

Mr. King had an accepted industrial injury for which he was receiving treatment.  His treating physician prescribed Klonopin among other drugs.  However, when this treatment was re-requested in July of 2013, some 2 years after the initial injury, UR denied it without providing a tapering program or advising of the effects of a “cold turkey” approach to ceasing its use.

To quote the ever-quotable Homer Simpson, “going cold turkey isn’t as delicious as it sounds.”

The sudden cut-off resulted in Mr. King suffering 4 seizures. A new request for the same in September of 2013 was also denied by Utilization Review.  About a year later, applicant and his wife filed suit against the UR physicians and the defendant.  The claims were tort and in civil court (which, from personal experience, appears misnamed, as it is hardly ever civil, unlike this gentlemen’s arena we call Workers’ Comp).

While the Trial Court ruled that applicant’s complaints are limited to the world of workers’ compensation, the Court of Appeal reversed, finding that while most of the claim was confined to comp, the failure to warn might not be, giving Mr. and Mrs. King leave to amend, which the defendants appealed, placing their fate in the hands of the mighty SCOC.

In the majority opinion, the SCOC ruled that Labor Code section 3602(a) provides that workers’ compensation is the exclusive remedy against an employer for workers’ compensation injury.  Not only that, authority was cited for extending this exclusive remedy liberally to just about anything tangentially related to workers comp: if the case involves a claim of injury by an employee against an employer, it’s probably going to be stranded on Workers’ Compensation Island (if you’ve never been, imagine an island of regret in a sea of spite, drizzled with the foliage of Kafka trees…)

To quote SCOC, an injury linked “in some fashion” to employment triggers exclusivity.  Thus, because the injuries alleged by the Kings “are derivative of a compensable workplace injury, their claims fall within the scope of the [WC] bargain and are therefore compensable within the workers’ compensation system.”

So… victory? Should defendants celebrate?  N so fast!  What SCOC gives with one hand, it takes away with the other.  SCOC held that “employers are ultimately responsible for paying benefits to workers who suffer injuries as a result of the utilization review process.”

What?!?  That’s right!  SCOC seems to hold that an injury resulting from the utilization review process might be a compensable consequence of the underlying injury.  So what are we talking about here?  A paper cut while opening the envelope with the UR denial?  A back sprain while picking up the heavy letter of UR non-certification?

What has applicant attorneys jumping for joy right now is that, in theory, if an applicant can tie a worsening of his or her condition to a UR denial, presumably that worsening is a compensable consequence.

But, your humble blogger would like to point this out to his beloved readers: this is not the first time this issue has come up.  The WCAB panel suggested, in McCool v. Monterey Bay that UR denial of drugs without a weaning program may result in administrative penalties.  There, UR had cut off an applicant from a particular drug without a weaning program.

Though the employer ultimately agreed to a weaning program, the WCAB advised, in dicta, that even Dubon would not save a defendant from administrative investigation if it cast a blind eye towards the very likely consequences of a UR determination.  (And yes, I did quote Homer Simpson in that blog post as well, but who could resist such a quotable character?).

So, what do we take away from this, dear readers?

No doubt, each of us will take our own lessons from the King case, and the opinion will be cited every which way by practitioners for years to come.  Your humble blogger can only submit this advice: as difficult and time-consuming as it may be, avoid “auto-pilot.”  The UR physician may, in haste and with a sense of urgency, issue a report on the status of the tree, but the adjuster must not lose sight of the forest.  Although UR may provide a basis for a denial, the claims examiner should use this as leverage to get to a reasonable result.

But, then again, dear readers, beware of free advice – often times there can be nothing more expensive!