Workers' Compensation

Missouri: Court Dilutes Claimant’s Drug Cocktail

The Missouri court of appeals affirmed a decision to dilute a drug cocktail, but the decision came with a twist with a warning about attorney’s fees.

In Noel v ABB Combustion Engineering, ED 98446 (Mo. App. 11-13-2012) the injured worker obtained a final award for permanent and total disability with open medical for a physical and psychiatric disability after 3 back surgeries. The employer paid benefits for several years and then refused to pay for multiple medications based on the recommendation of its IME doctor that some of claimant’s multiple ongoing drugs did not flow from the original lifting injury. The injured worker asked the Commission to re-open her case to prevent a change in pain and psychiatric medication and sought attorney’s fees for an unreasonable defense.

Section 287.140.1 provides the employer the right to designate a provider to provide care as reasonably may be required to cure and relieve from the effects of the injury. Section 287.140.2 provides the employer may lose this option if the choice endangers the life, health or recovery of the employee. Section 287.560 provides for costs for an unreasonable defense.

The Commission concluded that the injured worker failed to show all of the medications were necessary for her work-related injuries and did not reach the issue whether the change in treatment would endanger her life, health or recovery. The court of appeals found the Commission erred in part of its finding on the first issue and failed to make a finding on the second issue. The Court found that the Commission improperly disallowed two other medications based on insufficient evidence. It remanded to “determine the extent” of the employer’s liability for fees.

The claimant’s expert indicated that using cheaper medications would unequivocally risk claimant’s health. The employer had previously tried to wean claimant from narcotics and was ordered by an administrative law judge to not change physicians. In the original 2007 award a different administrative law judge admonished the employer not to change physicians to try to save money and warned an adverse medical response by the claimant could support an award for costs. Noel v ABB Combustion, 2007 MO WCLR Lexis 14.

This case is important in several regards. The case demonstrates the employer may designate a medical provider in a future medical award. Such decisions, however, are subject to review and potential penalties. Claimant must establish a need for treatment flows from a work injury. The claimant does not have to show the treatment cures and relieves the injury. The employer has the burden why it cut off medications, and the absence of specific evidence on each medication fails in that burden and may result in a claim for an unreasonable defense.

Utilization review is not a statutory defense in Missouri. Most states that have adopted utilization review programs to resolves these types of disputes whether costly drug cocktails are appropriate or not. This avoids this type of protracted litigation and the insinuation that saving cost of medical care is always at the expense of the patient. The court notes there was a utilization review in the case that was not relied upon.

The court decided the issue on very simple grounds that treatment was related or it wasn’t related without examining whether the treatment worked or not. The more difficult issue in these types of cases is determining when treatment is "reasonably related" and when a claimant's "recovery" is at "endangered" because of patient's reluctance to wean from narcotics. This is more difficult, too, when there are psychiatric co-morbidities and the claimant used narcotics for many years.  The court demonstrates the threshold issue is whether treatment flows from a compensable injury and demonstrated reluctance to address efficacy of treatment. It does not state the issue is totally irrelevant either.

It could be argued the case lowers the standard of care in proving medical treatment which has onerous implications regarding the employer’s defenses regarding treatment disputes. Missouri had about 400 hardship settings last year, many which likely involved disputes whether a proposed treatment is appropriate or not because experts dispute the efficacy of proposed care. The efficacy of treatment remains a critical issue to define an employer’s statutory obligations in order to avoid absurd results.

Source: Martin Klug, Huck, Howe & Tobin. Read Martin Klug's Mo. Workers' Comp Alerts.

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