Adel Salem sustained an industrial injury to his back and neck in 1978, while employed as a Deputy Sheriff by the County of Riverside. In 1981, he received an award of 45% permanent disability pursuant to Stipulations with Request for Award, together with an award of further medical treatment . Applicant has had four back surgeries between 1981 and 2002. He claimed that the defendant had “suddenly stopped approving all prescribed medications for Mr. Salem in August 2011.” At the time he was under the treatment of Dr. Watkin. and was taking approximately four Norco per day. Watkin reported that it was “inappropriate to just take a person off Norco abruptly.”
The non-certification of continued pain medication refills was explained by the UR physician as follows: “Ongoing and chronic use of a narcotic analgesic is not medically supported for this patient. The patient is essentially at maximum medical improvement and has received benefit from recent cervical epidurals. Given that the patient has had 65-70% improvement following cervical epidurals, there is no ongoing significant pain for which a narcotic analgesic would be necessary. Chronic and long-tern use of narcotic analgesics should be avoided in the chronic phase of treatment given the potential for abuse/addiction. The medical records do not establish moderate to severe pain for which ongoing use of hydrocodone/APAP would be indicated. Therefore, my recommendation is to retrospectively non-certify the request for hydrocodone/acetaminophen.”
Applicant filed a petition for penalties in 2013, alleging that defendant unreasonably denied medical treatment awarded under the 1981 stipulated award, by terminating his long standing prescription for pain medication to treat his ongoing pain symptoms. The workers’ compensation administrative law judge denied applicant’s petition for a penalty pursuant to Labor Code section 5814, finding applicant did not establish that defendant unreasonably delayed or denied his medical treatment by withdrawing authorization for applicant’s narcotic medication, as defendant established a good faith medical dispute based upon its reliance on its Utilization Review (UR) process.
The WCAB granted reconsideration and reversed in the panel decision of Adel Salem v County of Riverside.
The WCAB noted that applicant “has established that defendant delayed the provision of his medical treatment, thus the burden shifts to defendant to establish it had genuine doubt from a medical or legal standpoint to justify its abrupt termination of applicant’s prescribed medication. Defendant has not met this burden.” Applicant had been prescribed pain medication for many years, when defendant decided to seek utilization review of Dr. Roach’s prescription refill for the first time. The UR physician’s non- certification of applicant’s medications did not justify defendant’s abrupt termination, and thus the UR physician’s medical opinion does not constitute substantial evidence upon which defendant could rely to establish a genuine doubt. The MTUS expressly recommends “a slow taper” of opioid medications, which would encompass applicant’s prescription for Norco. “Thus, the record does not contain any evidence to support defendant’s denial of authorization of applicant’s prescriptions for pain medications, and in fact the applicable MTUS standards actually recommended against defendant’s immediate termination of refills. Defendant could not reasonably rely upon the UR physician’s report as a basis to immediately terminate applicant’s prescriptions. Thus, there is no evidence to support a finding that defendant had a genuine doubt from a medical or legal standpoint as to its liability for the continued provision of the narcotic medication prescribed by applicant’s primary treating physician.”
Moreover, as these proceedings were brought to enforce the prior award of medical treatment, the WCAB ruled that applicant’s attorney is entitled to payment of a reasonable attorney’s fee pursuant to Labor Code section 5814.5.
Commissioner Deidra Lowe dissented and indicated she would affirm the WCJ’s determination that the UR de-certification of narcotic prescriptions provided defendant with a genuine doubt as to its liability to continue to authorize the medications.