CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
Both utilization review physician and MTUS expressly recommended slow tapering of opioid pain medications
The WCAB, in a split panel opinion, rescinded a WCJ’s order denying the applicant’s petition for penalty under Labor Code § 5814, and held that a penalty was justified as the applicant had established that the defendant unreasonably delayed or denied medical treatment for his 1/22/78 back and neck injuries by abruptly withdrawing authorization for his narcotic/opioid pain medication, including diazepam and Norco, based upon reliance on the utilization review process.
Here, a majority of the WCAB panel found that the defendant did not reasonably rely on the utilization review physician’s report as a basis to immediately terminate the applicant’s prescriptions because the utilization review physician, while opining that ongoing pain medication was not recommended for the applicant’s neck condition as that condition was improved by cervical epidurals, did not recognize that the prescribed pain medication had been effectively controlling applicant’s back pain for years, and both the utilization review physician and the Medical Treatment Utilization Schedule (MTUS) guidelines for treatment of chronic pain expressly recommended against abrupt termination of pain medications and provided for the “slow tapering” of such medications, which, under 8 Cal. Code Reg. § 9792.24.2, would encompass both the diazepam and Norco.
A majority of the WCAB panel further found that there was no evidence to support the determination that the defendant had a genuine doubt from a medical or legal standpoint as to its liability for the continued provision of the narcotic medication that was prescribed by the applicant’s primary treating physician. Additionally, the WCAB panel found that because the proceedings were brought to enforce the prior award of medical treatment, the applicant’s attorney was entitled to payment of reasonable attorney’s fees pursuant to Labor Code § 5814.5.
Commissioner Lowe dissented and would affirm the WCJ’s finding that a penalty was not warranted in this case. Commissioner Lowe was persuaded that the WCJ correctly determined that the defendant had a genuine doubt from a medical or legal standpoint as to its liability to continue to authorize the narcotic medication after its UR physician found their continued use was not justified under the MTUS. Additionally, Commissioner Lowe pointed out the lack of evidence to establish the treating physician’s basis for continuing the applicant’s narcotic medication, especially given the limitation in the MTUS on long term use of narcotic medication to treat chronic conditions. Commissioner Lowe further pointed out that the UR physician’s recommendation for slow-tapering, as provided for under the MTUS, applied only to the diazepam prescription and only for individuals who are already addicted to that drug. However, Commissioner Lowe noted there was no evidence in this case suggesting that applicant was “addicted” to diazepam such that defendant’s denial of further medication was inappropriate.
See Salem noteworthy panel decision.
“Once again, the WCAB gets it,” says Melissa C. Brown, of Fraulob, Brown, Gowen & Snapp, PLC. “Medical treatment denials that ignore the injured worker’s medical condition as a whole are not issued in good faith.” But Brown believes what Adel Salem suffered in this case would not be remedied by the “watered down” penalty provisions of Labor Code Section 5814, and that “the penalty is no deterrent; it is too little, too late.” Brown explains that the UR denial that occurred in Salem happens hundreds of times a week. “They are SOP,” says Brown. “Insurance companies and self-insured employers would rather pay UR companies and Maximus than follow common sense policies which leave routine and ongoing medical treatment decisions to treating doctors, most of whom are in their own MPNs.” In her opinion, Salem showcases the wholesale erosion of basic benefits to injured workers. “Thousands of workers are seeing their long term and effective treatment regimens terminated with no right to judicial review on the merits,” according to Brown.
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