PAIN MANAGEMENT: WHEN IS ENOUGH TOO MUCH?

Make a habit of two things: to help; or at least to do no harm.

Hippocrates

The WC Act

• 77 P.S. § 531

• provides for payment of reasonable medical benefits as and when needed.

• includes, among other things, medications

Whose Burden?

Where WRI admitted, Employers BOP to establish that medical services are NOT reasonable and necessary.

Fotta v. WCAB (U.S. Steel/USX Corp.), 714 A.2d 479 (Pa.Cmwlth. 1998); Lehigh Valley Refrig. Servs. v. WCAB (Nichol), 548 A.2d 1321 (Pa.Cmwlth. 1988).

Treatment has been held to be reasonable and necessary although

• It is merely palliative in nature and produces no lasting benefit. Trafalgar House v. WCAB (Green), 784 A.2d 232 (Pa.Cmwlth. 2001)

• it is designed only to manage the employee’s symptoms rather than to cure or permanently improve the condition. Cruz v. WCAB (Philadelphia Club), 728 A.2d 413 (Pa.Cmwlth. 1999).

• It does not increase the employee’s physical capacity. Central Highway Oil Co. v. WCAB (Mahmod), 729 A.2d 106 (Pa.Cmwlth. 1999).

Modalities of pain management

1. OTC analgesicsibuprofen, acetaminophen and aspirin

2. Physical therapy and supervised exercise3. Acupuncture and holistic treatments4. Opioid and narcotic medication regimens

A. Short-acting medicationsB. Long acting medications (timed or

extended release)5. Interventional techniques

VARIATIONS OF OPIOIDS:

• Fentanyl Citrate, • Morphine, • Codeine, • Hydrocodone (Vicodin, Lortab), • Methadone, • Oxycodone (Percocet, Oxycontin), • Hydromorphone (Dilaudid) And • Meperidine (Demerol)

Opioids are addictive. Over time, patients’ focus may shift from

recovery to obtaining more of the opioid.

Do Opiods Drive Costs of Claims??

1. Without use of opioid/narcotic –

average $13,000.00

2. Short acting opioid like percocet – average triples to $39,000.00

3. Long acting opioid like oxycontin – average to $117,000.00

Do Financial Incentives Drive Use of Opiods??

• In 20 states where a doctor can both prescribe a drug and sell the drug to the injured person, the overall claim cost is even higher.

• Illinois: Vicodin average cost is 0.53 at pharmacy and $1.44 when sold by physician.

• “Illinois capped the amount of money a physician could make on physician dispensing and all of a sudden physicians didn’t dispense as much as they used to.” http://www.insurancejournal.com/news/national/2013/05/17/292528.htm)

ISSUES INVOLVING OPIOD USE

• Meant to improve recovery - instead can lead to disability

• Use beyond acute phase of injury can impair function

• Opioid use can become an additional barrier to recovery

• Opioid use may actually increase the pain experience (hyperalgesia)

• Dependency and addiction is no one’s desired outcome

NOT JUST WC

• CDC: “Centers For Disease Control And Prevention Has Classified Prescription Drug Abuse As An Epidemic” (www.whitehouse.gov.ondcp.prescription-drug-abuse)

• CDC: “Opioid-related Overdose Deaths Are National Epidemic” (www.hcplive.com/articles/opioids-related-Overdose-deaths-are-a-national-epidemic)

• OFFICE OF NATIONAL DRUG CONTROL POLICY: “Prescription Drug Abuse Is The Nation’s Fastest Growing Drug Problem.”( http://www.whitehoues.gov.ondcp/)

NOT JUST WC

• FDA: “Food & Drug Administration Is Extremely Concerned About The Inappropriate Use Of Opioids, Which Has Reached Epidemic Proportions In The US., Becoming A Major Public Health Challenge.” (blogs.fda.gov/fdavoice/index.php/2013/03/fda-joins-with-health-professional-organizations-in-encouraging-prescribers-to-seek-training-to-safely-prescribe-opioid-pain-medicines/)

OPIOIDS DRIVE CONTINUED INCREASE IN DRUG OVERDOSE DEATHS

• There are close to 40,000 drug overdose deaths each year in the U.S. and the number continues to rise. (CDC)

• More than ½ of overdose deaths involve prescription medications. (CDC)

• Opioid related deaths now exceed deaths involving heroin and cocaine combined. (CDC)

AMERICAN COLLEGE OF OCCUPATIONAL AND ENVIRONMENTAL MEDICINE

GUIDELINES FOR WHEN OPIOIDS SHOULD BE USED

BACK PAIN (The Most Common WC Injury)

“Opioids might be good for use in the acute phase, say within 6 weeks after injury. But if it doesn’t improve in the short term, continuation is not really indicated.”

http://www.insurancejournal.com/news/national/2013/05/17/292528.htm

OPIOD USE IS PREVALENT IN WC CLAIMS

• Roughly 80% of injured workers who get pain medication are prescribed opioids.

• http://www.insurancejournal.com/news/national/2013/05/20/292528.htm

CONTROLS ARE NOT

• Protocols suggest periodic random urine drug screening for patients on opioids

• Not happening in Pennsylvania, New York And New Jersey

• Only ¼ or less of non-surgical workers’ comp claims identified as longer-term users of narcotics had routine urine drug testing.

• http://www.insurancejournal.com/news/national/2013/05/20/292528.htm

• In PA 11% of non-surgical WC claims with narcotics identified as longer-term users

• Tied for 3rd highest state

Workers Compensation Research Institute

LONG TERM USE RESULTS

CHANGE IS ON THE WAY

PENNSYLVANIA PRESCRIPTION DRUG MONITORING PROGRAM

• Housed In The Attorney General’s Office.

• Pending bills seek to enhance - establish a pharmaceutical accountability monitoring system - an electronic system for monitoring all scheduled drugs.

• Seeks to reduce the abuse of controlled substances

PENNSYLVANIA PRESCRIPTION DRUG MONITORING PROGRAM

• Seeks to provide a tool to ensure practitioners making prescription decisions have complete information about what other prescription drugs may have recently been prescribed to their patients.

• Data to go to central repository to help identify patient/practitioner behaviors that give rise to reasonable suspicion that prescription drugs are being inappropriately obtained or prescribed, .

• http://www.insurancejournal.com/news/national/2013/05/20/292528.htm

How do WC Payers Identify Cases Where They Think Problems Exist?

When the Payer Identifies a “Problem Case,” What Are Its

Options?

• Non – litigation– Self help?– Pharmacy records?– Demand UTs and Pill

counts?– Any other options initially?

• Litigation– UR – IME/Petition to Review– IME/Forfeiture Petition?– Comparative

strengths/weaknesses?

IF

• palliative care is reasonable

• C is taking pursuant to RX

• C’s use is compliant

How do you prove the medications are not reasonable or

necessary?

Malpractice

Sword or Shield?

Medical Malpractice – the elements:

• (1) The physician owes the patient a duty of care and was required to meet or exceed a certain standard of care to protect the patient from injury;

• (2) the physician breached this duty or deviated from the applicable standard of care; and

• (3) the patient was injured and the injury proximately resulted from the physician's breach of the standard of care.

ER’s Are Liable for Med Mal

•  ”[I]t has long been the settled and unquestioned… where the negligence of parties who treat a worker causes injuries… the employer or its insurance carrier is responsible to pay benefits.

• Powell v. Sacred Heart Hosp., 514 A. 2d 241(Pa. Cmwlth.1986) (citing 1923 Supreme Court precedent)

Two Schools of Thought Doctrine

• Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given specialty.

• Jones v. Chidester, 610 A.2d 964. (Pa. 992)

Settlement

• Hurdles/Impediments created by RX use

• Unseen opportunities – using settlement as the carrot (stick?)

Ethical Problems for Claimant’s Counsel

• RPC – must treat an impaired/disabled client as normally as possible.

• RPC – must zealously represent– What if losing the case is the best outcome?– Addiction = DENIAL

• Is there a financial incentive (e.g. conflict of interest) to be cavalier?