Addressing Opioid Abuse In New York Workers’ Compensation Claims

These days, it seems like the issue of opioid abuse is quite simply flooding into the national consciousness. A simple Google search will quickly lead to the scary conclusion that opioids are quite literally killing people every day, from rock stars to housewives, people young and old, and from all walks of life. According to the American Society of Addiction Medicine, there were 18,893 overdose deaths caused by use of prescription pain medicine nationwide in 2014. Furthermore, “[f]our in five new heroin users started out misusing prescription painkillers.”

There is also evidence that opioid abuse costs American employers billions of dollars. Not surprisingly, opioid abuse is a growing problem in New York, and legislators are taking notice.  The NY Workers Compensation Board also chose to address the issue, and its Non-Acute Pain Guidelines went into effect on December 15, 2014.

Background.

How did we get to this point? Unfortunately, prescribing doctors are at the heart of the problem. According to the centers for Disease Control and Prevention, there were 259 million painkiller prescriptions written in 2012. Pharmaceutical companies have also taken blame for the epidemic. There has been startlingly little regulation of the medical profession in terms of prescribing opioids, but the CDC has just release new guidelines to address the problem. Furthermore, Congress has started to take action. Law enforcement agencies in jurisdictions throughout the country have also started to crack down on doctors who contribute to the problem, leveling charges and winning convictions for not only drug distribution, but also manslaughter, and even murder.

New York’s Non-Acute Pain Management Guidelines.

The New York Workers Compensation Board’s Non-Acute Pain Guidelines went into effect on December 15, 2014. Among other things, the Non-Acute Pain Guidelines address the use of opioids by  workers’ compensation claimants on a long term and short term basis. However, the Board has expressly indicated that “[i]t is critical to note that the MTG do not require, and are not intended to recommend, the immediate cessation of prescription narcotics or other medication for claimants who have been using such medication long term.” Furthermore, prescribing doctors may not even be required to request a variance in order to alter a claimant’s narcotic regimen.

Detoxification.

The question, then, is what to do when an IME (or any other treating physician) opines that a claimant is addicted to opioid medication and requires detoxification. In fact, there are a number of provisions which purport to regulate the prescription of opioid narcotics. For example, § F.2.c.ii of the Non-Acute Pain Guidelines indicates that “[w]hen opioid dose, type, or patient condition changes, the Patient Informed Consent for Opioid Treatment and Patient Understanding for Opioid Treatment forms must be updated and properly signed by the patient and the physician.” This is a vital step for doctors to take, as the informed consent form attempts to put claimants on notice of the risks of opioid use – risks which can include death. Per the guidelines, doctors are also supposed to assess claimants for placement on a risk stratification scale, with reference to age, health condition, co-morbidities, as well as family and personal substance-abuse history. Prescribing doctors who are not regularly performing these tasks put their patients at a grave risk.

§ F.2.c.ii also indicates that a maximum of two opioids should be prescribed: “[a] long-acting opioid for maintenance of pain relief and a short-acting opioid for limited rescue use when pain exceeds the routine level.” In cases where the prescribed dose exceeds the recommended maximum, § F.3.e of the guidelines states that “the morphine equivalent doses (MED) of the different opioids must be added together to determine the cumulative dose.” This is important, because, as stated in § F.3.e.ii, “[r]isk for overdose or adverse effects substantially increases at doses > 100 mg/oral MED.”

The “substantial” increase in risk caused by doses above 100mg oral MED per day gives rise to perhaps the strongest clause in the guidelines regarding the prescription of opioid narcotics, in terms of enforcement. § F.3.e.ii indicates that “[p]ersistent doses > than 100mg/MED/day by any medical provider may be subject to a secondary review by an external consult in pain management or addiction medicine.” The Board can refer a case to the Medical Director’s Office for assignment of such an external review. While there is an argument that chronic pain should be treated aggressively, § F.1.d of the guidelines indicates that opioids are “fourth line drugs” for neuropathic pain, with common anti-inflammatory drugs as a much safer alternative.

There is good news, however. § F.3.e.i of the guidelines indicates that “[o]pioid withdrawal symptoms are unpleasant but not life threatening.” This is as opposed to the life-threatening nature of opioid overdose. Any claimant who is suspected of opioid abuse should be scheduled for an IME with a specialist who is Board Certified in Addiction Medicine or Pain Medicine. With an IME report in hand, litigation on this issue can be commenced, and the prescribing doctor will be subject to cross-examination regarding compliance with the Non-Acute Pain Medical Treatment Guidelines.

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Tim Kane is an associate attorney at Lois LLC where he defends employers and carriers in New York workers’ compensation claims. Tim can be reached directly at tkane@lois-llc.com or 201-880-7213.