King v. CompPartners: A Litigation Update

| | Utilization Review

Toms Case Law Update Article for Aug 2016
With the recent filing of the CompPartners Reply Brief, all briefs have now been filed with the Supreme Court of California. As a refresher to why this case is so important to the utilization review (UR) community, in 2008 Kirk King sustained a work-related back injury. At some point, he was prescribed Klonopin to help with anxiety. After taking Klonopin for some time, his employer sent the request for Klonopin to UR. The UR was managed by CompPartners.

A CompPartners UR physician, Dr. Sharma, reviewed the request. After reviewing the California Medical Treatment Utilization Schedule (MTUS), Dr. Sharma did not believe Klonopin was medically necessary. As a result, CompPartners sent notice to King and his treating physician that Klonopin was not approved.

King ceased taking Klonopin and allegedly suffered seizures from the abrupt withdrawal. He sued Dr. Sharma for failing to warn. Surprisingly, the CA Court of Appeal said he had a viable cause of action against CompPartners and Dr. Sharma for failing to warn him that immediate cessation of Klonopin could cause seizures. CompPartners appealed to the Supreme Court of California. That’s where the case is now.

In their Opening Brief before the Supreme Court, CompPartners gave some solid legal arguments why they believe a physician doing UR is not practicing medicine and does not owe a claimant a duty of care as would a treating doctor. King’s Respondent’s Brief presents several interesting arguments that UR physicians make medical decisions concerning necessary medical treatment and have duties to warn those whose lives their decisions affect. They also argue that King’s claims are not preempted by the Workers’ Compensation Act. They analogize someone like Dr. Sharma to a private investigator hired by the insurance carrier to spy on the injured worker. They say that since a private investigator could be sued by an injured worker, so should Dr. Sharma since he was retained by CompPartners in a similar manner.

In CompPartners Reply Brief, we see several strong arguments as outlined below.

(1) CompPartners argues that King continues to ignore LC Sec. 4610.5 subdivision (a) which states that UR disputes “shall be resolved according to this section.” The section requires all medical necessity disputes to go to IMR.  CompPartners makes the case that when drafting SB 863 the CA Legislature was not required to use the words “this precludes a civil lawsuit outside of IMR.”

(2) The California Workers’ Comp Act precludes tort suits against employers, their carriers, their TPAs, and other companies used to administer the UR process. For example, LC Sec. 4610.5 expressly defines an employer to include “the insurer of an insured employer, a claims administrator, UR organization, or other entity acting on behalf of them.”

(3) CompPartners argues that King is suggesting a “new role” for UR physicians. In other words, UR physicians are now to act as “supplemental treating providers.” This is completely at odds with the Legislature’s plan. Indeed, LC Sec. 4610, subd. (a) & (c) says nothing about UR physicians providing treatment recommendations. Rather, their role is to review treatment recommendations made by the treating physician. And even in doing so, it is only a paper review of the medical records.

While both sides have made good arguments, so far it appears that CompPartners has the stronger arguments. The next step will be for the Supreme Court to hear oral arguments. We anticipate this in the next month or so, and hopefully the Supreme Court will issue its ruling in early 2017. Everyone in the UR community is following this case very closely, and we eagerly await the Supreme Court of California’s opinion.

Tom Swiatek

Tom Swiatek

As Assistant Vice President of Regulatory Services, General Counsel, and Editor in Chief of UR Nation, Tom Swiatek draws on his experience as an insurance attorney on both the general liability side, as well as on workers’ compensation matters. As a California Workers’ Compensation Section Member, Tom is leading the discussion with respect to the regulatory challenges and opportunities facing the workers’ compensation system.