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...
The bad news is that opioid abuse related to treating chronic pain remains a serious problem for every workers’ compensation system participant. The good news is that many workers’ compensation jurisdictions are increasing their efforts to reduce this situation that officials at the federal Centers for Disease Control and many other experts label an epidemic.
An August 2013 report titled “Reducing Inappropriate Opioid Use in Treatment of Injured Workers: A Policy Guide” from the non-profit International Association of Industrial Boards and Commissions (IAIABC) addresses specific issues regarding this problem and discusses governmental responses. This report is intended to help workers’ compensation systems develop policies that effectively reduce opioid abuse.
The proposed guidelines recognize that the negative impact of opioid abuse on the workers’ compensation system extends well beyond the financial burden associated with excessively large number of prescriptions for these drugs. Other identified ill effects include:· A need to treat the resulting drug dependency;· A high rate of (often fatal) drug overdoses; and· Delays in returns to work.
The scope of the report includes specific recommendations related to relevant policies and charts that show current policies in individual states.
Recommended Principles Regarding Opioid Use Policies
A strong theme in the IAIABC policy guide is that a panel of individuals with a wide variety of expertise and perspectives should contribute to developing the approach of a workers’ compensation system to opioid abuse. The stated benefits of this coordinated approach extend beyond developing policies that reflect the relevant knowledge; this model compensates for any single agency or department lacking all of the authority needed to implement the necessary reforms.
A specific recommendation is that the panel includes representatives from:· Public health departments;· Agencies that regulate the insurance industry and workers’ compensation systems;· Regulators of pharmacies and prescription practices of physicians; and· Law-enforcement and other governmental entities that monitor and enforce official policies.
Once a panel is created, the suggested first step is evaluating existing laws, regulations, treatment guidelines, and other policies related to opioid use. This helps identify areas on which to focus in enhancing efforts to reduce opioid-related problems.
The reported benefits of including treatment guidelines in policies that address opioid abuse include:· Enhancing the possibility of appropriate prescription practices regarding opioids; and· Helping educate a workers’ compensation claimant about alternative pain-management methods.
Another suggestion regarding treatment guidelines is that both medical-care providers and workers’ compensation insurers understand the applicable standards. The risks of poor communication in this area include insurers basing their policies on a different set of guidelines than the ones to which physicians refer when prescribing opioids.
Similar communication is recommended regarding policies related to dispute-resolution procedures, pre-authorization processes, and utilization reviews. The advocated extent of this communication also encompasses ensuring that physicians understand their obligations regarding documenting and reporting their opioid prescription practices for patients who suffer from chronic pain.
The overall principle that the report advocates on this topic is that “treatment guidelines, a key component for directing physician care regarding chronic pain, should ideally be consistent with the provision of all medical treatment, with opioids being simply one component in the overall treatment plan for patients.”
Overseeing the number of months that a claimant takes opioids and the dosage of those prescriptions is a crucial element of an effective opioid policy. This is particularly true for claimants who take opioids for chronic, rather than acute, pain.
A recommended portion of this monitoring includes at least suggesting developing an opioid plan or “agreement” between a treating physician and a claimant that states the extent to which the physician will prescribe opioids. This agreement should be included in the claimant’s medical record and should be reviewed annually while the claimant is taking opioids.
Suggested components of the plan include:· Limits related to using opioids to manage pain;· Possible side-effects associated with long-term opioid use;· Factors related to opioid dependency;· Role of therapy and other pain-relief techniques; and· The claimant’s duty to divulge every relevant drug or substance that he or she is consuming and to cooperate with required drug testing.
The report further advises that obtaining a report from a Prescription Drug Monitoring Program that is inconsistent with information in a claimant’s medical record regarding his or her prescription drug use triggers a treating physician addressing the issue with the claimant and the pharmacy or other source of the previously undisclosed drugs. It is also suggested that the physician additionally divulge the information to the workers’ compensation insurer under appropriate circumstances.
Denial of Treatment
The advice regarding policies that are intended to reduce opioid use extends beyond establishing guidelines related to properly monitored and otherwise regulated use to a properly communicated plan for tapering and ultimately discontinuing that use. The report emphasizes the importance of the element of drug tapering regarding this approach.
Other guidance regarding drug tapering and the subsequent denial of workers’ compensation coverage for opioid prescriptions includes separately ensuring that the claimant understands the reasons for that step and transitioning him or her to an alternative pain-management program.
Examples of properly documented misconduct that can justify drug-tapering and discontinuation of treatment include:· Non-compliance with treatment guidelines; · Violating terms of a treatment plan; and|· Not cooperating with reasonable drug-screening activity.
Getting Participants On Board
Instituting policies that address issues related to opioid abuse should incorporate the lessons from your jurisdiction’s past and the experiences of other workers’ compensation systems. Obtaining the support of participants in your workers’ compensation system regarding those policies is another important element of establishing the relevant laws and regulations.
Reducing administrative burdens on medical-care providers, insurers, and government entities is a significant part of getting support for policy reforms. The overall recommendations in this area are to provide financial incentives either in the form of increased revenue or showing how the additional obligations more than offset the expenses and work associated with opioid abuse.