It may be an unfortunate reality but narcotics are a common aspect of medical treatment within the workers’ compensation system. As pain is an extremely individual experience, it is difficult if not impossible to assess whether the medications prescribed are excessive, inadequate or appropriate. It is likewise impossible to determine whether an individual’s response to narcotics is reasonable or even an expected consequence to the medication being prescribed. In short, the impact medications have on a given individual is an inherently and extremely subjective matter. As a consequence, including an individual’s medication usage in the determination of his residual permanent disability can prove to be a very difficult matter. Given this difficulty, the question becomes whether a permanent disability (PD) determination that does not fully consider the impact that the prescription drugs may be having on an individual constitutes substantial evidence?
Recently, a number of cases have been issued by the California Workers’ Compensation Appeals Board (WCAB) dealing with issues relating to prescription pain medications. One panel decision specifically addressed the impact of medications on the proper determination of PD. In Tentnowski v. Perotti & Carrade, 2011 Cal. Wrk. Comp. P.D. LEXIS 509, the workers’ compensation judge (WCJ) found that applicant had sustained a 95% permanent disability. On reconsideration, applicant contended that she was not employable in the open labor market in part based on her need for substantial amounts of medications.
In the underlying case, the WCJ relied on the orthopedic opinion of Dr. Shelub in determining applicant’s orthopedic permanent disability. In his report dated March 20, 2009, Dr. Shelub did not mention the possible effects of applicant’s various medications on the restrictions he provided. He did take the history that applicant was taking Oxycontin and that the Oxycontin is a potent pain medication. He also noted the Oxycontin may interfere with the patient’s ability to engage in certain activities that require her full attention. Aside from this, he stated, “I do not see how a patient on this extent of Oxycontin could function optimally at a forty hour work week”.
After reviewing Dr. Shelub’s reports and applicant’s testimony, the Commissioners’ first observed that there may have been an increase in the amount of medications applicant was taking between the times of the applicant’s last examination with Dr. Shelub and the trial date. The commissioners further noted:
"In order to clarify the issue of permanent disability, we conclude that further development of the medical record is necessary to allow Dr. Shelub to issue a supplemental report which addresses applicant’s current medication usage and the effect of that issue, if any, on Dr. Shelub’s opinion of applicant’s restrictions and permanent disability. (McDuffie v Los Angeles County Metropolitan Transit Authority (2002) 67 Cal. Comp. Cases 138 [Appeals Board en banc].) Since the WCJ also relied on AME Schneider to determine psychiatric disability, Dr. Schneider likewise should be given an opportunity to comment on applicant’s medication usage and its effect, if any, on Dr. Schneider’s assessment of her psychiatric disability."
Interestingly, there was a dissenting opinion in the case. The dissent essentially argued for the affirmation of the 95% award:
"I disagree that the medical record requires further development. In his March 20, 2009 report, Dr. Shelub stated that applicant has a lumbar spine restriction to sedentary work with postural alteration from sitting to standing at will, and that she could begin working on a half time basis four hours per day five days per week. It is clear that Dr. Shelub added the restriction to half time work based on his December 31, 2008 report, wherein he had stated that applicant could not function optimally in a forty hour work week with the amount of Oxycontin she used. Dr. Shelub’s March 20, 2009 report, upon which the WCJ relied to find permanent disability of 86% for the orthopedic component, did take into account the effect of applicant’s pain medications, so further development of the record is unnecessary."
The dissent further argued that the psychiatric aspect of the case did not require development to the extent the psychiatric AME took into account all of applicant’s medications, and since the WCJ relied upon the specific report that considered the use of medications in determining the psychiatric disability, there was no need for further development of the medical record regarding applicant’s medication usage.
The reality of the workers’ compensation system is that, particularly in chronic pain cases, if there is going to be one area of the applicant’s permanent disability that is going to be “overlooked”, it will be the impact that pain medications may be having on him. Often the amount of medications being prescribed will leave the applicant in a “zombie” like state. Often the medications will leave the applicant in a state where all he wants to do is sleep all day. If the medications are prescribed for an orthopedic condition, such as a failed back surgery, should an orthopedist address the effect of those medications? An orthopedist will likely tell you that such an assessment is outside of his expertise. A psychiatrist might describe the applicant’s psychiatric function after the medications, but probably could not tell you whether such a reaction is expected or reasonable based on the medications being prescribed.
Indeed, it is often very difficult to know exactly how to have the medication issue evaluated in a workers’ compensation case. Though the specialty codes for QME panels include pain management and physical medicine, would the WCAB order second panels in those specialties where there was already an orthopedic panel assigned to the case? Should the codes include a specialty specific to pharmacology? In Tentnowski, the panel chose to go back to the evaluating physicians in an effort to fully assess the role of the medications in determining applicant’s PD. Regardless of how the impact of medications is evaluated, the commissioners’ opinion here serves as an acknowledgement to the significant and sometimes devastating impact that pain medications may have on an individual’s ability to function.
Lexis.com subscribers can link to the cases cited above.
Reminder: Be sure to check the subsequent history of the panel decision before citing to it.
© Copyright 2012 LexisNexis. All rights reserved. This article will be published in an upcoming issue of California WCAB Noteworthy Panel Decisions Reporter.