McCool v. Arrowood Indemnity (BPD) (42 CWCR 274):
Applicant injured her back on September 17, 1983 in the course of her employment. The employer accepted liability for the injury and provided benefits including three spinal surgeries.
In September 1993, a Worker’s Compensation judge found applicant to have 52% permanent disability and award of future medical treatment.
In 2014 applicant was being treated by Mark Sontag who prescribed various medications including OxyContin, Norco, Amrix and Lyrica. The drugs had previously been authorized by defendants.
Defendant’s utilization review vendor denied re-authorization of the medications.
The matter proceeded to expedited hearing on the issue of applicant’s need for medical treatment. It was stipulated at the hearing that applicant had previously authorized the medications.
The WCJ awarded the medications and ordered defendants to continue to provide the medications until no longer reasonably required.
Defendant filed a petition for reconsideration.
The WCAB agreed with defendant that the WCJ had erred, in observing that there was no current dispute.
Defendant had been providing the medications for at least three months before the request for hearing and was continuing to provide them. There was, therefore, no dispute for the WCAB to resolve.
Although the applicant wanted to proceed with the hearing because she was afraid the medications might be stopped in the future, the WCAB does not, said the panel, issue advisory opinions or preemptive rulings on possible future controversies that may never arise.
Citing the case of Patterson, the board indicated the defendant had unilaterally terminated nurse case manager service without seeking determination through UR regarding whether or not such services were medically necessary. In the present case, however, defendant did not terminate medications on its own initiative; rather, it submitted the prescriptions UR as required by LC 4610 and denied authorization based on the UR determination.
Recurring prescriptions, moreover, were not the kind of ongoing care that was unilaterally terminated in Patterson. By their very nature, prescriptions are limited in terms of frequency and time. Each new prescription requires a new request for authorization that may be submitted for UR. Authorization of one prescription, the panel explained, does not automatically mean that recurring prescriptions must be authorized indefinitely. The treating physician has an obligation to document the need for each recurring prescription, particularly when the prescription is for heavily regulated opioids.
The panel agreed with the WCJ that the UR denial was wrong, but concluded that Paterson reasoning did not apply to the facts in the present case. Even if a dispute does exist at the time of the hearing, under the Board en banc decision in Dubon the WCAB was without jurisdiction to resolve it absent a showing the UR was untimely further, the WCAB also lacks jurisdiction to prohibit you are of future treatment requests.
The panel added although they were rescinding the WCJ’s finding and award, it shared the concerns expressed by the applicant and the WCJ regarding the UR denial on medication. The UR reviewer claimed his decision was based on the Medical Treatment Utilization Schedule, but declared an abrupt halt opioid use.
The schedule, however, states, opioids cannot be abruptly discontinued without probable risk of withdrawal symptoms. Defendant’s uncritical acceptance of an internally inconsistent UR recommendation not only caused applicant to seek an order preventing it from happening again, but also exposed applicant a serious health risk.
The WCAB rescinded the WCJ’s Findings and Award and return the matter to the trial level for further proceedings.