On August 22, 2018, the Supreme Court of California issued its decision in the case of King v. CompPartners, Inc., (S232197), concluding that an injured worker may not sue a UR physician for malpractice in tort outside of the workers’ compensation arena, and that “the workers’ compensation law provides the exclusive remedy for the employee’s injuries and thus preempts the employee’s tort claims.”

In the King case, the utilization review physician denied a treating physician’s request and recommendation to continue prescribing the drug Klonopin without warning the worker of the possible side effects of discontinuing the medication or recommending a plan to wean him off of the drug, which allegedly caused the employee to have four seizures. The Supreme Court analyzed the utilization review procedures and guidelines established by the Legislature and concluded that a UR organization and UR physician stand in the shoes of the employer in executing the duty to provide medically necessary industrial treatment.

The Court also examined Labor Code Section 3600 and 3602, wherein workers’ compensation benefits are deemed to be “the sole and exclusive remedy of the employee…against the employer.” Two Justices issued concurring opinions agreeing with the exclusive remedy conclusion, but each expressed concern.

Justice Liu observed in his concurring opinion, “the undisputed facts in this case suggest that the workers’ compensation system, and the utilization review process in particular may not be working as the Legislature intended.” He concluded his opinion by suggesting, “The Legislature may wish to examine whether the existing safeguards provide sufficient incentives for competent and careful utilization review.”

Justice Cuellar suggested in his concurring opinion, “Even now, those safeguards and remedies may not be set at optimal levels, and the Legislature may find it makes sense to change them.”

Boehm will keep you posted regarding any legislative response to this Supreme Court decision.