New York Workers’ Compensation Board Announces New Hearing Process for Opioid Weaning Issues

Recognizing that opioid addiction is a major public health crisis, the New York Workers’ Compensation Board today announced a new hearing process to address opioid weaning issues. In 2014, the Board implemented the “Non-Acute Pain Medical Treatment Guidelines” (“MTG”) to address opioid usage in workers’ compensation claims.

Declan Gourley
Declan Gourley, Esq.

As the “Non-Acute Pain Medical Treatment Guildeines” makes clear, long-term opioid use is only recommended in limited circumstances, and must involve constant clinical monitoring and re-evaluation. The guidelines also includes best practices for safely weaning injured workers from opioids and other narcotics.

Requesting a Hearing

Under the new process, the insurance carrier or self-insured employer can now request a hearing to address whether the claimant should be weaned from opioids. In order to request the hearing, the Board requires an IME report or Records Review, “which indicates weaning goals and recommended weaning program or resource” be submitted with the RFA-2.

In response to the RFA-2 filed by the insurance carrier:

The claimant will have the opportunity to submit a medical report from his or her prescribing physician. The report must contain the provider’s review of the use of opioid medications, a list of the claimant’s current medications and a review of whether the opioid medication is in compliance with the Non-Acute Pain Medical Treatment Guidelines. The provider may comment on weaning resources identified in the IME and/or provide alternative resources. The medical report is due by the date of the hearing, which will be held approximately 45 days after the Board notifies the claimant of the insurer’s request for a hearing.

If the claimant or his legal representative wishes to cross-examine the IME, they may do so. However, the new procedures require the deposition transcript(s) to be in the Board file prior to the opioid weaning hearing. Should the treating physician submit medical evidence contrary to the IME, the insurance carrier may request cross-examination of the treating physician at the hearing.

The Hearing Process

Once all evidence (medical reports, deposition transcripts, weaning recommendations) is submitted and the parties are heard, the Law Judge will issue a ruling finding either:

  • Insufficient proof that there is a need for continuing long-term opioid use and the claimant must be weaned from the narcotic medication(s); or
  • Insufficient proof that there is a need for continuing long-term opioid use and the claimant must be weaned from the narcotic medication(s), and enrolled in an addiction treatment program; or
  • Claimant demonstrated the opioid use was effective in terms of improved function and reduction of pain, and that weaning will be unnecessary at this time.

When the WCLJ rules that the claimant must be weaned from the opioid medication, the insurer will be required to cover the cost of the claimant’s addiction treatment program or weaning protocol, as directed. If the claimant is to be weaned without addiction services, the insurer will remain liable for the claimant’s medications for the duration of the weaning process. If an addiction treatment program has been directed, then after 30 days, the insurer will only be liable for payment of narcotic prescriptions written by an addiction treatment program physician.

Basically, this new process ensures the issue of whether a claimant’s opioid medication treatment is within the Non-Acute Pain Medical Treatment Guidelines will be addressed in an expedited matter and sets forth the process for how these issues are to be litigated.

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Declan is an attorney licensed to practice law in New Jersey, New York and the U.S. District Court of New Jersey. Declan is a Partner at Lois LLC where he defends employers and carrier in New York workers’ compensation claims. He can be reached directly at dgourley@lois-llc.com or 201-880-7213.