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Workers' Compensation

California: Slow Taper of Opioid Usage: UR Decisions Must Be Consistent With the MTUS

In McCool v. Monterey Bay Medicar, 2014 Cal. Wrk. Comp. P.D. LEXIS --, the WCAB panel rescinded the WCJ’s award of medical treatment in the form of Oxycontin, Norco and Lyrica to the applicant who sustained an industrial low back injury on 9/17/83 resulting in three back surgeries.

The WCAB found that, after initially issuing a UR denial of the requested treatment, the defendant authorized the prescribed medications and was providing the medications at the time of the expedited hearing on the issue of the applicant’s entitlement to the medications.

The WCAB further found that, because the medications were already authorized and being provided, there was no dispute to be resolved at the expedited hearing over which the WCAB had jurisdiction. According to the WCAB, the expedited hearing should not have occurred.

The WCJ, by ordering the defendant to continue providing the medications until the applicant’s circumstances changed and the medications were no longer reasonably required to cure or relieve from the effects of the industrial injury, misapplied the holding in Patterson v. Oaks Farm (2014) 79 Cal. Comp. Cases 910 (Appeals Board significant panel decision) to the facts in this case. Here, unlike the defendant in Patterson, the defendant did not unilaterally terminate the medications on its own initiative but rather it submitted a prescription for medications to UR as required by Labor Code § 4610 and denied authorization based on the UR determination. In addition, the recurring medication prescriptions are not the sort of ongoing medical care that was unilaterally terminated in Patterson, as prescriptions, by their nature, are limited in terms of frequency and time, and each new prescription requires a new request for authorization which must be submitted to UR for authorization.

Even assuming a dispute did exist at the time of the expedited hearing, under Dubon v. World Restoration, Inc. (2014) 79 Cal. Comp. Cases 1298 (Appeals Board en banc opinion) (Dubon II), the WCAB had no jurisdiction to resolve the dispute absent a showing that UR was untimely, and the WCAB was without jurisdiction to preclude UR of future treatment.

The WCAB panel, in dicta, expressed serious concerns regarding the defendant’s UR denial of the prescription medications Oxycontin, Norco and Lyrica to the applicant, as the UR reviewer claimed to base the denial on the Medical Treatment Utilization Schedule (MTUS), yet declared an abrupt halt to the applicant’s long term opioid usage after quoting specific language in the MTUS regarding the risk of abruptly stopping opioid medications and recommending the “slow taper” of the medications under direct, ongoing medical supervision. The WCAB emphasized that UR is intended to ensure that injured workers receive timely and medically necessary treatment pursuant to objective, evidence-based guidelines and is not intended to be a cost containment method. According to the WCAB, the defendant’s uncritical acceptance of an internally inconsistent UR recommendation exposed the applicant to serious health risks. The WCAB pointed out that Labor Code § 4610(c) requires UR decisions to be consistent with the MTUS. The defendant’s policies and procedures in this case, though, were insufficient to prevent a UR decision in violation of Labor Code § 4610(c). The WCAB cautioned that any future abuse of the UR process could subject the defendant to penalties.

Read the McCool noteworthy panel decision.

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