CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
According to the Department of Industrial Relations Director Christine Baker, “opioid misuse is a national concern”. As a result of this “misuse”, the Division of Workers’ Compensation recently posted proposed “Guidelines for the Use of Opioids to Treat Work Related Injuries”. Presently, the Medical Treatment Utilization Schedule (MTUS) addresses the use of opioids in the Chronic Pain Medical Treatment Guidelines. The idea is to remove this section and create a new guideline that consists of four separate parts.
The new regulations adopting the use of these guidelines will be found in the California Code of Regulations, title 8, section 9792.24.4. These guidelines are extremely detailed. In fact, they provide an analysis of opioid use over the different phases of care, from acute to chronic; they analyze opioid use based on the severity of injury, and they examine and compare numerous existing opioid treatment guidelines.
Interestingly, under the recommendations, specifically starting at page 21 of Part B, there is an in depth discussion concerning screening for risk of addiction or adverse events prior to chronic opioid treatment, screening for drug misuse and abuse, and screening for additional psychosocial factors contributing to substance abuse.
As part of the enactment process, the proposed opioid treatment guidelines were subjected to public comment. These comments tended to be very specific identifying concerns related to particular aspects of the proposed guidelines.
The California Applicant’s Attorney’s Association expressed the concern that the new guidelines will prevent these medications from being tapered in a humane way where the physician does not document the need for continued use. CAAA urged a one year grace period to allow the physician to document continued use. If the physician fails to document the need, then CAAA argued that the injured worker should then be tapered off of the medications.
The California Chamber of Commerce commented that the draft Opioid Treatment Guidelines reflect “an excellent starting point”. The Chamber was specifically pleased with the intended use of CURES, drug testing and the other referenced tools as “positive step” in the treatment of injured workers. The Chamber further recommended that in Part B that he word “should” be replaced with “shall” so as to provide UR and IMR reviewers’ greater clarity. Finally, as did many in the insurance industry, as well as the UR industry, the Chamber advocated for the consideration of the latest release of ACOEM, which has recently reduced the recommended maximum daily morphine equivalent dosage (MED) from 80 mg to 50mg, and ODG prior to the finalization of the proposed guidelines.
The balance of the comments tended to be very specific with the particular language or recommendations contained in the draft guidelines. Physician’s such as Dr. William Brose and Steven Feinberg made thoughtful comments on a number of the potential problems with the proposed guidelines including the potential risks associated with the over-reliance on CURES.
While it is very difficult not to assume that these guidelines will not result in a significant reduction in the amount of opioid medications being prescribed by workers’ compensation doctors, it is as equally hard to argue that there has not been a major problem for years and possibly decades relating to the over-prescription of these medications.
Recently, the WCAB issued a case that high-lighted the dire consequences that can occur when there are not effective guidelines to manage the use of these medications. In Porter v. AON Corporation, 2014 Cal. Wrk. Comp. P.D. LEXIS 360 (lexis.com) (Lexis Advance), the WCJ addressed whether the injured workers’ death was related to the use of opioid medications that he was taking in connection with two prior industrial injuries that affected his neck, headaches and back. In determining that the workers’ death was industrial, the WCJ relied on County Examiner’s opinion and investigation which concluded the death was due to narcotic drug intoxication. The WCJ also paid close attention to the prior treating physician’s report which most notably observed an increasing tolerance to narcotic drugs. The WCJ also commented on the Panel Qualified Medical Evaluator’s (PQME) report. The PQME found the worker’s death was the result of medication abuse as opposed to strictly pain management. The WCJ ended up not relying on the PQME’s assessment of abuse to the extent she did not feel the PQME fully supported his conclusions.
Undoubtedly, the proposed MTUS applicable to opioids will significantly impact the prescription of opioid medications in the workers’ compensation arena. Particularly in view of the new guidelines focus on screening for risk of addiction, screening for drug misuse and abuse, and screening for additional psychosocial factors contributing to substance abuse, these new guidelines will make tragic deaths like the one in Porter significantly less likely.
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