The Legal Implications Of Prescription Medication Abuse In The Workers' Compensation Environment McAnany, Van Cleave & Phillips, P.A.

Transcription

1 The Legal Implications Of Prescription Medication Abuse In The Workers' Compensation Environment 2013 McAnany, Van Cleave & Phillips, P.A.

2 The Wicked Witch of the West

3 Schedule II substances are those that have the following findings: The drug or other substances have a high potential for abuse. The drug or other substances have currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions. Abuse of the drug or other substances may lead to severe psychological or physical dependence. Examples: Morphine, Oxycodone, Fentanyl, Methadone

4 Schedule III substances are those that have the following findings: The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II. The drug or other substance has a currently accepted medical use in treatment in the United States. Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence. Examples: Codeine, Hydrocodone, Tylenol

5 The Grim Statistics (General Population): From 1991 to 2001, the number of prescriptions for opiod medications has increased 300%. ER visits for opiod medication abuse has increased faster than alcohol, heroin, cocaine, and other drugs. The number of opiod drug related deaths has increased from under 4000 in 1999 to over 16,000 in For every opiod drug related death in 2010, there were: 10 abuse treatment admissions 26 ER visits for misuse or abuse 108 people with abuse or dependant issues 733 non-medical users

6 The Grim Statistics (Worker s Compensation Population): Narcotics account for 25% of all workers compensation prescription drug costs. NCCI: Top 1% of users consume 40% of prescription narcotics. NCCI: Early narcotic use indicative of prolonged use. Washington State (2006): 32 injured workers found to have died from abuse of prescription painkillers. Overall costs per claim when narcotics are involved:?

7 Missouri Caselaw Anecdotal Research Searched Database for Workers Compensation and narcotic 43 cases found, analyzed first ten. In 4 of 10 ALJ relied at least in part on claimant s on-going chronic use of narcotic pain medications to find the employee PTD. In 7 of 10 ALJ relied at least in part on the claimant s ongoing chronic use of narcotic pain medications as a basis for an award of PPD. In the remaining 3 cases the ALJ found the claim was not compensable for one reason or another. In 10 of 10 there were co-morbidities alcohol, prior medical condition, psychiatric or psychological conditions.

8 Opiod medications do not treat the cause of pain; rather, they mask the perception of pain. Extended use of opiod medications leads to addiction and dependence. Development of tolerance to opiod medications leads to increased dosages.

9 Issues in Workers Compensation Claims: Compensability Drug and Alcohol Defenses: : non-prescribed controlled drugs Common law total blank defense Co-morbidities: Is something else really responsible for the claimant s problem?

10 Issues in Workers Compensation Claims: Compensability Intervening cause? Suicides not compensable but only if it s intentional. Taking someone off life support is direct and natural consequence, not intervening cause : If the employee desires, he shall have the right to select his own physician, surgeon, or other such requirement at his own expense.

11 Issues in Workers Compensation Claims: Medical Treatment Cost Dependancy (duration) Secondary gain issues: getting better means giving up the drugs. Fraud: What if employee is selling or giving to family/friends?

12 Issues in Workers Compensation Claims: Temporary Total Disability Benefits Side Effects of Drugs (Drowsiness, Lethary, Dizziness, etc ) are not welcome in many work environments. Secondary Gain issues: getting better means giving up the drugs.

13 Issues in Workers Compensation Claims: Permanent Disability Benefits The ALJ also made extensive findings about the narcotic medications Ms. Sawyers was taking due to her constant back pain and inability to sleep. At the time of the final hearing, Ms. Sawyers was taking Vicodin, Flexiril, and 800 mg. of Ibuprophen for pain, and Welbutrin for depression. These medications made her sleepy and adversely affected her ability to concentrate. Based on the expert testimony, the ALJ concluded that these prescriptive medications would negatively impact Ms. Sawyers's employment prospects. Ball-Sawyers v. Blue Springs School Dist., 286 SW 3d Mo: Court of Appeals

14 Issues in Workers Compensation Claims: Permanent Disability Benefits A rehabilitation consultant, Wilbur Swearingin, saw Employee twice. He administered a number of tests and also reviewed Employee's medical records. From this, Swearingin opined that Employee was permanently and totally disabled based upon her injuries sustained in the June 21, 1996, accident. He reached this conclusion based on Employee's medical restrictions, her use of narcotic medication, her limited educational background, her history of manual labor, and advancing age (58 years). Lockman v. Citizen's Memorial Hosp., 140 SW 3d Mo: Court of Appeals

15 Issues in Workers Compensation Claims: Permanent Disability Benefits It was his (Dr. Walker s) belief that the only treatment which had alleviated Claimant's pain had been the use of narcotic drugs and he thought she might use medication to control her pain for an indefinite period of time. Russell v. Invensys Cooking & Refrigeration, 174 SW 3d 15 - Mo: Court of Appeals

16 What can we do? Choose good doctors. Monitor and manage claims: look for red flags. Co-morbidities More than 60-days on narcotics Involve peer-review physicians and nurse case managers. Change treating physicians (only after IME or Peer Review). Warn offending physicians. Be prepared to offer detox. Settle!