September 28, 2017 BY Thomas Cauthen
Charting a New Course for Pain Management in the Workers' Compensation Arena
As the reverberations of the opioid crisis are being felt around the country, Chairman Frank McKay of the Georgia State Board of Workers’ Compensation has vowed to address the over-prescription and abuse of these Schedule II narcotics in the workers’ compensation setting. The Chairman recently announced that the State Board would examine and work to remedy the over-prescription of narcotics. In 2013, Georgia passed the Georgia Pain Management Clinic Act, O.C.G.A. § 43-34-280 et seq., in order to give state regulators and law enforcement additional tools to oversee the plethora of pain management clinics operating within the state by providing stringent requirements for the licensure and oversight of these clinics as well as adding reporting and renewal requirements. On the heels of the Georgia Pain Management Clinic Act, Georgia has taken steps to more closely monitor prescription drugs to prevent patients from double dipping.
Initial indications are that these measures are having some of the intended effects on workers’ compensation claims. Chairman McKay cited statistics at the 2016 Workers’ Compensation Law Institute that opioid prescriptions filled by Georgia workers’ compensation claimants have been reduced almost 20% from 2012 levels. However, there is much more to be accomplished, as over-prescription and opioid addiction remain a primary concern for all parties in workers’ compensation claims.
The prescription of opioids and addiction as a result of opioid dependence have long frustrated employers and insurers, as a referral to pain management treatment and years of prescriptions of costly opioid derived narcotics unnecessarily inflate the value of claims. Often prescriptions of Oxycontin, Gralise ER, and other narcotics can add hundreds of thousands of dollars to a Medicare Set-Aside (“MSA”) and make claims nearly impossible to resolve. In a case where an employee is referred to an inpatient detoxification program due to high levels of opioid consumption as a result of the treatment for their work injury, the employer and insurer will likely be responsible for that cost.
By way of example as to how much of an impact the over-prescription of opioids can have on a claim, in a recent claim, the employer and insurer were ordered by the State Board to authorize the claimant’s hernia repair when she sustained the hernia as a result of opioid induced constipation. The Board relied on the opinions of the claimant’s neurosurgeon and gastroenterologist that the high dosages of MS Contin ER and Percocet the claimant was taking for her failed back syndrome and CRPS caused the opioid induced constipation, and thus led to her hernia. The severity of this example pales in comparison to overdose and death.
Perhaps an indicator of positive changes to come, in 2016, the Centers for Disease Control and Prevention (“CDC”) published guidelines for physicians when prescribing opioids. CDC Guideline for Prescribing Opioids for Chronic Pain — United States, 2016. According to the physicians and researchers at the CDC, there is very little in the way of empirical evidence to support that long-term opioid treatment actually works to decrease chronic pain. However, we do know that as opioid prescriptions are increasing, so are the rates of opioid-related overdose deaths and addiction. Between 1999 and 2014, over 165,000 people died from an overdose of opioid pain medication in the United States. CDC at 3. Alarmingly, nearly 40% of all opioids prescribed are taken incorrectly or stolen. CDC at 4. Not only does the use of opioids often lead to the abuse of the medications such as Fentanyl, the CDC also found the opioids are a gateway to illegal drugs such as heroin. Moreover, as the dosages of these powerful and addicting substances rise, mortality rates and risk factors increase exponentially.
According to the studies discussed in the CDC’s report, one cause of the epidemic is related to the prescribing of opioids by primary care physicians without proper monitoring. CDC at 5. This is one of the issues that the Georgia Pain Management Clinic Act is designed to target. The CDC report goes onto discuss the risks associated with high levels of opioid usage such as respiratory depression and death. Unfortunately, as is highlighted in the report, the instances of complications, abuse, and death from the over-prescription of opioids are continuing to rise, as physicians—often PCPs—prescribe higher dosages of opioids for acute and chronic pain without sufficient knowledge of the consequences and misinformation as to efficacy of opioids that they are prescribing. CDC at 5-6.
The steps that the State Board of Workers’ Compensation will implement over the coming years remain to be seen. However, employers and insurers have the opportunity to take assertive actions at this time to curb the costs related to the over-prescription of opioids. With the State Board and the reputable portion of the medical community working toward a consensus on the dangerous effects of these drugs, we recommend being aggressive when handling these claims. If a claimant who is being prescribed opioids is not seeing a decrease in pain coupled with an improvement in function, it is it time to take long look at their treatment program.
Several questions should be addressed by the nurse case manager or claims adjuster such as: 1) Has the claimant attempted proven non-opioid treatment options including physical therapy, injection therapy, non-opioid medications, and cognitive behavioral therapy before opioids are prescribed?; 2) Has the claimant’s treatment provider adequately addressed the risks of opioid therapy with the claimant including psychological, relational, and job-related factors?; and 3) Did the claimant’s treatment provider establish clear goals from the outset, such as functional improvement, with a process for reassessing the treatment plan every few months?
If the above questions have not been addressed, and the claimant has not attempted other proven methods of care prior to the use of opioids, the claims adjuster should take affirmative steps to maintain control over medical care in order to avoid escalating costs and the multiple health risks associated with prolonged opioid usage. This is especially true if a claimant is referred to pain management or is already taking high levels of opioids as prescribed by the authorized treating physician.
The claims adjuster should be proactive and schedule an independent medical evaluation (“IME”) with a reputable pain management provider. Several pain management groups strongly disfavor the use of opioids, and it is often well-worth the cost of the IME in order to have a highly regarded physician review the claimant’s records and propose an alternative plan of care. At the very least, a conservative pain management specialist will be able to propose non-opioid medications and modalities, aside from ongoing opioid usage, and a titrating or weaning schedule to safely decrease the claimant’s opioid dosages without withdrawal. If the claimant’s authorized providers are ultimately unreceptive to the suggestions of the reputable IME physician, then consult legal counsel and proceed with filing a WC-200B Request for Change of Physician or a WC-14 Request for Hearing seeking a change in physicians.
If the claims adjuster would rather not pursue an IME with possible litigation, then ordering a third party vendor or internal peer review physician to perform a periodic medication review may also prove useful. The purpose of this review is to ascertain if the claimant’s opioid regimen exceeds the CDC’s guidelines for morphine milligram equivalents (“MMEs”) per day and whether the opioids being prescribed raise warning signs for potential harmful interactions with other pharmaceuticals that the claimant may be taking. Of note, the CDC’s research strongly suggests that any prescriptions over 100 MME per day are dangerous with the exception of limited instances involving end-of-life care. CDC at 22. This tactic is especially useful in claims where the claimant has several providers prescribing various medications, as opioids become more dangerous when mixed with other medications, benzodiazepines for example, and can have serious side effects such as severe depression and suicide.
The take away from the recent Workers’ Compensation Law Institute and the CDC’s new guidelines is that opioid abuse is a widespread and costly issue plaguing healthcare in the United States. The State Board of Workers’ Compensation, through Chairman McKay, has signaled that it is ready to confront the toll that opioids are taking on the workers’ compensation system. While the ultimate outcome is uncertain, employers and insurers should be aware the State Board will be receptive to challenging the prolonged use of opioids in workers’ compensation claims. Thus, employers and insurer should be aware of their options concerning IMEs and pharmaceutical reviews to combat the costs associated with prolonged opioid use and addiction.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley