Overcoming Opioid Arguments

How workers’ comp is helping to break the cycle of abuse

May 15, 2023 Photo

In its first revision of guidelines for prescribing opioids since 2016, the Centers for Disease Control and Prevention (CDC) issued new guidelines on Nov. 3, 2022. In a sentence, the CDC returned more autonomy to medical providers. While the initial response from the medical community is one of approval, many in the fight against the overprescribing of opioids see this as a retreat by returning autonomy to those whose actions facilitated the crisis in the first place.

Workers’ compensation has always been ground zero in the opioid crisis. Since its introduction in 1996, OxyContin has led the charge for opioid-based treatments. Its favorite market since the beginning has been the workers’ compensation industry. The first targets were industries that involved intense physical labor resulting in chronic pain—lumber and furniture making, steel manufacturing, and granite workers. Opioids appeared, and still appear, to create win-win-win situations. Workers experienced relief, insurance carriers reduced the costs associated with surgeries and other more expensive treatment options, and, of course, Big Pharma sells its products.

The relaxation of the recommendations should be overshadowed by statistics, but appears not to be. The CDC summary of the crisis as of Jan. 30, 2019 highlighted the magnitude of the situation:

“As of 2016, 15% of workers’ compensation claims with at least one prescription for opioids had an original date of injury that was six or more years prior (year 2010 or earlier) to the current prescription, 30% of opioid claims had a date of injury that was two-to-five years prior, and 55% of opioid claims had a date of injury that was less than two years prior, based on data from 40 states (emphasis added). Longer-term workers’ compensation opioid prescriptions resulted in longer durations of temporary disability compared with claims with no opioid prescriptions.”

A 2019 survey by the National Safety Council found that 75% of U.S. employers have been directly affected by opioids. This number includes 38% experiencing absenteeism or impaired worker performance, and 31% reporting an overdose, arrest, a near-miss, or injury because of employee opioid use.

For now, the workers’ compensation industry must address the issue on a case-by-case basis. In doing so, however, the opportunity to change what has become the accepted normal will change.

In most jurisdictions, the medical treatment portion of the workers’ compensation statute can be reduced to a single sentence: The employer is responsible for all reasonable and necessary medical treatment to cure or relieve the effects of a work-related injury. The key phrase is “cure or relieve.” No one ever argues that opioids “cure,” since they do not promote nerve, vascular, or bone regeneration.

The problem is that plaintiffs’ attorneys successfully argue to courts that they relieve the effects of injuries. The testimony is generally that, without the opioids, a claimant’s pain level is a 10. With the narcotics, the pain level is brought down to a five or six, and the worker is able to function. They can climb stairs, bend down to tie their sneakers, drive to the big box store (yes, while on opioids), push a shopping cart around the store for an hour or longer, and carry the bags into the house.

Defense attorneys poke holes in the testimony based on the treating doctors’ records but, ultimately, it is usually for naught as the preponderance of evidence are claimants’ proclamations that the opioids provide relief. Claimants cite treating doctors who proclaim that, in their medical opinions, opioids provide relief from the effects of work-related injuries. Again, defense counsel systematically presents the notes in the medical records of claimants stating that they are experiencing more and more breakthrough pain, that they need to self-medicate, and that their pain level has now increased back to a seven or eight. It doesn’t matter—going from a pain level of 10 to eight is relief, right? Again, the preponderance of evidence supports the determination that opioids are relieving the effects of the work-related injuries.

The employer presents its medical expert, who emphasizes the ineffectiveness of the opioids and that the claimant is demonstrating all of the symptoms of opioid addiction. But, in the end, the testimony is still that the claimant is getting relief.

So how do you get past the simple assertion that opioids are relieving the effects of a work-related injury? The answer lies in understanding pain itself. Pain is an extremely complex sensation. The pain experienced in the moment you are struck by an object, roll your ankle, fracture a wrist, or cut yourself with a box cutter is not the same as chronic pain. The opioid crisis exists because its use continues after the acute stage.

Let’s consider a simple ankle fracture. It is widely accepted that the acute pain stage has passed within a week. Testimony for the continuation of opioids is that when a claimant is on his feet for an extended period of time, the pain can only be controlled by opioids. While continued use of opioids can result in the brain screaming about pain to obtain more opioids (addiction), prior to that point, the pain is most often caused by swelling at the site of the work-related injury.

More and more frequently, defense counsel are discussing injuries with their pain experts before confronting claimants or prescribing doctors. Thereafter, the testimony is shifted from the claim of “relief” from the injury’s effects to understanding the injury’s mechanism to discredit the assertion of relief. In the previous example of an ankle injury, there are a lot of bones, nerves ligaments, and tendons in a very small space. Swelling is the collection of fluid at the site of the injury, and it presses on the nearby nerves causing pain.

There are two basic categories of analgesics used to treat pain: non-narcotic-based analgesics, and narcotics-based analgesics. The first category includes corticosteroids or “steroids,” such as cortisone and prednisone; non-steroidal anti-inflammatory drugs (NSAIDs) such as ibuprofen (known by brand names such as Motrin and Advil); and naproxen (known by brand name Aleve). Narcotic analgesics include OxyContin, Percocet, and Vicodin.

Non-narcotic medications go to the site of injuries and reduce swelling by blocking the cyclooxygenase-2 (COX-2) enzyme. This enzyme produced by the body is a necessary part of the healing process, but an overabundance of it results in swelling and pain at the site of injuries. Controlling the amount of swelling relieves the effects of a work-related injury, so non-narcotic medications are therefore reasonable and necessary under workers’ compensation laws. Opioids, on the other hand, create the illusion of relief by attaching to the opioid receptors in the brain and depressing pain receptors. It dulls the pain even while the swelling and the overabundance of both the COX-1 and COX-2 enzymes continue to be the physiological basis for the pain.

In other words, opioids are not relieving the effects of a work-related injury. If they are not doing that basic job, then they do not meet the requirement of a workers’ compensation statute that requires a treatment to cure or relieve the effects of a work-related injury, making them neither reasonable nor necessary.

Does the argument work? Can it work? More and more, courts are receptive to the argument. In Martin v. Newark Public Schools (2019), the New Jersey Appellate Division affirmed the judge of workers’ compensation’s ruling that continued deployment of Percocet did not cure or relieve the effects of the work-related injury. Likewise in Golembesky v. WCAB (Worth & Company, Inc.) (2019), a three-judge panel of the Commonwealth Court of Pennsylvania upheld the workers’ compensation board’s ruling that, after the claimant had reached maximum medical improvement, continued deployment of opioids like oxycodone was not reasonable and necessary.

If the arguments in these cases were that good, surely other courts would have weighed in. I assure you, it is not for trying. As the claims manager for a major food manufacturer with a national footprint, I raised the issue in numerous states. Truth be told, I never received a court ruling on the issue. In all fairness, though, it is because every time we decided that a particular case was appropriate to argue the issue—a decision made in conjunction with defense counsel and a pain specialist—the claimant’s attorney would request an adjournment “to resolve the case without the court’s intervention.”

It is not without irony that an opioid crisis born in the fertile world of workers’ compensation could now face the genesis of its end from the same program. By considering the medical and legal arguments carefully, you will be prepared to make your case effectively for the proper use of opioids in work-related injuries.


About The Authors
Jeff Marshall

Jeff Marshall is a risk management and claims management consultant.  imanagerisk4u@gmail.com

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