A New Mediation Track to Combat Opioid Use by Injured Workers

Massachusetts’ new pilot program aims to break the emphasis on opioids

On October 23, 2015, attorneys and judges from Massachusetts, Rhode Island and New Hampshire gathered at Gillette Stadium to discuss a variety of workers’ compensation issues that affect all three states. This is the second year that this conference has been held and the first year where New Hampshire has joined the discussion. Not only was this a perfect bright, crisp fall day in New England, but the venue allowed the participants to spend time at the home of the World Champion New England Patriots.

Massachusetts Secretary of Labor, Ronald L. Walker, II provided introductory remarks emphasizing the importance of workers’ compensation in the regional economy. The day then centered on the judges and attorneys from three states spending time with each other recognizing the importance of learning about the similarities and differences in practice, procedure and substantive law in the New England region.

In our constantly moving society where more and more employees work electronically, commute from state to state and where employers have a multi-state presence, it is essential that practitioners and judges have a basic understanding of the workers’ compensation laws in other states. Many of us represent employees or employers whose work covers several states or where employment contracts occur in one state but accidents occur in another. The speakers discussed topics common to the three states with an emphasis on comparing and contrasting the systems. The speakers described the litigation processes, how average weekly wage and comp rate are calculated, the payment of seasonal employees, compensability of occupational injuries and medical reimbursement rates along with the complex issues involved in joint/dual jurisdiction claims.

New Programs to Deal With Opioids and Addiction

One of the most important topics of the day revolved around the opioid medication epidemic. The Seminar participants were introduced to two newly established programs in Massachusetts designed to change the way in which opioids and addiction are handled. The Mass. Bar Association WC Section in conjunction with the Department of Industrial Accidents through Senior Judge Hernandez have recently created a pilot program which will “divert” post settlement claims involving opioid medication from the traditional litigation path to a mediation track designed to work with the parties to break the emphasis on opioid medication. In the traditional track, a judge ultimately decides whether an employee remains on opioid medication. Under the mediation plan, a mediating judge will work with the parties and a nurse case manager to create a program designed to break the emphasis on opioids. Ultimately, an agreement would be entered into between the parties. If the mediation fails, the parties can return to the litigation track.

The Workplace Safety Task Force of the MBA has worked with doctors and other practitioners to establish a network of medical providers with the goal of a team approach to reducing addiction. This medical team is available to injured workers and insurers as a means of reducing litigation and emphasizing a medical means of ending the addiction path.

Dr. Robert Feliz, a pain management practitioner, described the problems with opioid addiction and the need for the medical community to de-emphasize the prescribing of these addictive medications. The judges and attorneys on the panel all discussed potential alternatives to the use of opioid medications including “scrambler” therapy, physical therapy, alternative medicine and prescription of non-narcotic medication. The serious issue facing insurers, medical providers and attorneys is the extensive number of injured workers addicted to these expensive and dangerous medications. New ideas are important and should be considered in cases involving addiction.

Electronic Filing Systems

There was an interesting discussion of the good, the bad and the ugly of the very different electronic filing systems implemented by Massachusetts and Rhode Island. Clearly, each system has good and bad aspects. In Massachusetts, the entire file is viewable on line by anyone who is a party. However, not all forms are available to be filed in electronic format. In Rhode Island, everything must be filed electronically but not all forms and the history of the case can be viewed off the system. In time, hopefully both systems will evolve to the point where every document is filed electronically, is viewable on line and the parties can decrease emphasis on the use of paper documents.

Employer Premium Fraud

Attorney Michael Lynch from Beacon Mutual Insurance along with Martin Jenkins from the New Hampshire Dept. of Labor joined Paul Meagher of WCRIB and Anthony DiPaolo of the Insurance Fraud Bureau in discussing employer premium fraud and its effect on the system and ultimately on the premiums paid by employers for workers’ compensation insurance. All agreed that continuing criminal prosecution was the key to putting the brakes on these illegal practices.

Opt Outs

The day concluded with a discussion of topics on both the national as well as the state levels which may be the next issues facing practitioners. Pending and potential legislation in Rhode Island and Massachusetts was described along with the national issues including opt-out. The Secretary of Labor as well as the practitioners and judges felt that opt-out is not an appropriate mechanism for providing workers’ compensation benefits to injured workers. Moreover, there was substantial discussion of the inequities in differential benefits for employees based on the place of employ. It did not appear that there was any support in the room for opt-out.

The day concluded with an agreement that this seminar was a valuable tool for judges and attorneys alike and should be continued into the future hopefully with the addition of the other New England states.

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