Latest NFL Suit Reflects Broader Opioid Issues
The problem of over-dependence on opioids in workers’ compensation is well-documented and well-publicized, but it’s being brought to attention in a different light in a recent lawsuit against the NFL.
Nine ex-players are arguing that the league put their health in jeopardy by prescribing powerful painkillers to treat injuries and combining medications into dangerous “drug cocktails” without informing of them of their addictive properties and negative side effects. The plaintiffs allege that “in contravention of Federal criminal laws, the NFL has intentionally, recklessly and negligently created and maintained a culture of drug misuse, putting profit in place of players’ health.”
Lots of questions will need to be answered before it can be determined whether the suit holds any water. Are players considered employees of the NFL? Were the prescribing practices of their treating physicians actually illegal? Should the players have taken a more active role in determining their treatment and ability to play? Can they prove that any ongoing health issues are the result of treatment they received as players?
The league will likely use exclusive remedy as their defense, an approach challenged by the concussion lawsuit settled last year, which the league ultimately settled by establishing a fund for the treatment of former players. The strength of the exclusive remedy defense will hinge upon whether team physicians broke the law by distributing addictive painkillers and not fully educating players about their side effects.
“In the NFL and other sports, if you’re a starting player and hurt your hamstring, there are three other guys that will take your place if you don’t get back on the field.” — Mark Pew, senior vice president, PRIUM
That defense may also be weakened by an Aug. 13 ruling out of a Miami-Dade circuit court that declares Florida’s exclusive remedy provision unconstitutional on the grounds that the state’s benefits to injured workers have gradually eroded. Judge Jorge E. Cueto’s ruling states that “the benefits in the act have been so decimated, since its implementation 40 years ago, “that it no longer provides a reasonable alternative” to civil court.
Opioid Problem Persists
The lawsuit highlights the unique environment that professional sports players work in.
“Players are hyper motivated to get back on the field,” said Mark Pew, senior vice president at PRIUM. “The average worker doesn’t necessarily lose their job if they get injured. Those that don’t have the discipline to get back to work, they get comfortable staying at home. In the NFL and other sports, if you’re a starting player and hurt your hamstring, there are three other guys that will take your place if you don’t get back on the field.”
With their own trainers, physical therapists and physicians on staff, pro sports teams are also insulated from the general healthcare system. The plaintiffs allege that teams kept poor records of treatment history and “directly and indirectly” supplied players with un-prescribed narcotics to manage pain, a violation of federal drug laws. The “constant diet” of pain pills led some of the players into full-blown addiction.
Though players’ circumstances differ dramatically from the average worker’s, the suit reflects conversations taking place across the country about misuse of opioids in workers’ compensation.
“A 2013 NCCI study found that prescription drugs were 18% of all medical costs in workers’ comp, which is very high when you take into account all the expensive medical procedures and treatments that workers’ comp pays for, including catastrophic claims all the way down to sprained ankles,” Pew said.
Payers tend to avoid more conservative treatment options because they have a history of over utilization, and they don’t want to get stuck paying for lifestyle management for the rest of a claimant’s life. Paying for yoga and gym memberships – things that increase functionality and flexibility and can help manage chronic pain – are seen as too alternative.
But, as Pew said, “the pendulum is beginning to swing in the other direction.” Just as exclusive remedy comes under fire, more workers’ comp payers and healthcare providers are seeking ways to reduce dependence on opioids and pursue more conservative treatments like physical therapy to deal with chronic pain.
Even the pro sports leagues.
“Sports teams have everything at their disposal to go with more conservative options,” Pew said.
“Everyone owns their own healthcare. You should question the treatment that’s been provided. Though there’s still a concept that doctors are never wrong, patients need to understand treatment options.”
Americans Mostly Safe From Ebola, Despite Rapid Spread
Since it was first discovered in early March, the Ebola outbreak in West Africa has reportedly taken up to 900 lives and infected about 1,700 others — a number that is likely to grow rapidly as affected countries (Guinea, Liberia, Nigeria and Sierra Leone) struggle to contain the disease.
The disease is increasingly emigrating to other countries, with at least two suspected victims in U.S. hospitals and a suspected Ebola death in the Middle East. Several Middle Eastern countries are reporting suspected infections.
A meeting on August 1 between World Health Organization (WHO) director Dr. Margaret Chan and leaders of Sierra Leone, Guinea and Liberia established a $100 million plan to deploy more medical professionals to the region.
In a transcript of meeting remarks, Chan said, “This outbreak is moving faster than our efforts to control it. If the situation continues to deteriorate, the consequences can be catastrophic in terms of lost lives but also severe socioeconomic disruption and a high risk of spread to other countries.”
Despite these bad omens, though, American business travelers and employees stationed in the region should be at low risk for infection as long as they take basic precautions.
“So long as they avoid heavily populated areas, practice standard universal hygiene precautions like hand washing, and stay out of hospitals and clinics where Ebola patients are treated, their risk should be lower,” said Dr. Robert Quigley, regional medical director and president of medical assistance, Americas region, for International SOS.
Armed gangs are chasing caregivers away from villages, while the infected hide, for fear that aid workers will cart them off to die.
Katherine Harmon, health intelligence director at iJET International, said her company advised that the affected countries and surrounding areas were safe for travel. “If you’re not a health care worker, you have low risk of being exposed. Stay away from large crowds; avoid people who are sick in general; practice good personal hygiene. The risk of contracting Ebola is quite small.”
The rapid spread of disease among these impoverished countries, she said, is mostly due to cultural practices. In burial practices, for example, the bodies are washed, and the deceased’s loved ones customarily touch the body as a sign of reverence.
“They don’t understand that those bodies are still infected, and everyone who touches them is at risk,” she said. “And if somebody tries to come in and take the bodies away to cremate them, they take it as a religious slap in the face.”
Health ministries in the affected countries also separate physician licensing into Western medicine practitioners and homeopathic practitioners. “There’s a very strong community sentiment that does not believe in Western medicine. They believe doctors want to preform experiments on them,” Harmon said. “The biggest risk is from patients who have absconded or are hiding their symptoms, refusing to seek treatment.”
“If you’re not a health care worker, you have low risk of being exposed. Stay away from large crowds; avoid people who are sick in general; practice good personal hygiene. The risk of contracting Ebola is quite small.” — Katherine Harmon, health intelligence director, iJET International
Ebola’s mortality rate is around 90 percent, but early treatment can improve chances of survival by about 30 percent. Police in some countries have started to conduct house-by-house searches to locate infected people.
Harmon also advised U.S. workers or visitors in the region to carry their own medical kits, as supplies and availability of doctors will run low. Self-care may be necessary, she said, since not all third-party medical assistance providers will be able to evacuate employees due to international regulations and individual protocols.
“You may be stuck there,” she said.
The affected countries have ramped up efforts to quarantine the disease over the past few days. Sierra Leone declared a state of emergency, Liberia has sealed its borders, and two major Nigerian airlines will no longer fly into countries where Ebola has been confirmed. The Centers for Disease Control (CDC) has recommended deferring all non-essential travel to the region. WHO, however, has not issued any travel or trade restrictions.
Airports servicing flights in an out of the regions are screening passengers for symptoms, which will help contain the disease, Harmon said. “The best approach is for people to understand what’s going on and be cooperative with these measures.”
Though the Peace Corps and other aid groups have pulled out volunteers, “lots of organizations, such as NGOs, are heading in there anyway,” Quigley said.
“All companies have different thresholds for evacuation and different levels of risk tolerance. They should be looking through their travel tracker processes to identify anyone who is there and potentially at risk. They are having to work with local authorities, who have some control over how and when people can exit.”
“Companies should evaluate their risk tolerance, talk to their insurance people and assistance providers and make sure they’re covered,” Harmon said. “Know what your plan is to get out if something happens.”
Quigley added, “You need to go back to your business continuity plan, which traditionally would include an infectious disease plan and pandemic plan. If you don’t have one, this kind of event should motivate companies to develop one. You can bet there is some exposure there for companies in every industry segment.”
In addition to supplying more nurses and physicians, WHO’s new plan also aims “to increase preparedness systems in neighboring nations and strengthen global capacities.” This should slow the transmission of the Ebola virus within the most affected countries and prevent its spread across borders.
The plan also includes improved communication efforts, advising how to avoid the infection, how to recognize its symptoms, and how to report suspected cases. “Referring people infected with the disease for medical care, as well as psychosocial support, are key,” the statement said.
“It can take 21 days to prove you are Ebola-free if you’ve been quarantined,” Harmon said, “Once these countries have a zero-case level of Ebola patients, it will take up to 42 days for them to be declared Ebola-free. It’s going to be a while before things are back to normal.”
Claimant Pleads the Fifth, Wins Benefits
In the case of Cruz vs. the Workers Compensation Appeals Board (Kennett Square Specialties), the Pennsylvania Supreme Court established that employers bear the burden of proof when it comes to arguing that an injured worker’s immigration status is the cause of loss of earning power, rather than his injury.
In July 2008, David Cruz injured his lower back while working as a truck driver for Kennett Square Specialties, which operates a mushroom farm in Chester County, Pa. Cruz herniated a disc in his back while lifting 15- to 20-pound barrels into the truck and reported the injury immediately. Cruz’s physician, as designated by his employer, ordered that he lift no more than 15 pounds, barring him from returning to his pre-injury job.
Kennett Square informed Cruz that it had no positions available that suited his restrictions, and so paid him temporary workers’ comp benefits for roughly a month before ceasing payments altogether in September, 2008. Cruz subsequently filed a petition claiming that his ongoing, work-related injury rendered him totally unable to work, and thus entitled him to compensation for lost wages and medical expenses.
The real trouble arose during the hearing, when the employer’s attorney questioned Cruz about his immigration status. Cruz’s lawyer objected, citing his client’s Fifth Amendment right not to provide a self-incriminating answer.
Cruz was born in Ecuador and arrived in the U.S. approximately 10 years before the incident.
“In all of the cases that came before this, the injured worker admitted in the legal proceeding that they were undocumented. In most cases, the court used that as the basis for concluding that their benefits should be suspended,” said Matthew Wilson, attorney with workers’ comp firm Martin Law. “The Cruz case is interesting because it was the first time a lawyer got smart enough to say ‘we’re not answering that question.’”
While evidence proved that Cruz’s injury did in fact disable him and prevent him from working, Kennett Square moved to discontinue all compensation on the grounds that Cruz’s illegal status disqualified him from receiving benefits. Initially, the judge partially concurred with this argument, ordering Kennett Square to cover medical expenses (as the injury was decidedly work-related), but stop disability compensation.
“The second a doctor finds an injured undocumented worker can still perform some type of work, the court can legally suspend their wage check, but not their medical, on the premise that if they went looking for a job, they couldn’t get one legally because they don’t have documentation,” Wilson said.
An appeal by Cruz turned that around in his favor.
The state Workers Compensation Appeals Board (WCAB) found that in order to cease all disability compensation payments, Kennett Square bore the burden of proof to show that Cruz’s loss of earning power really stemmed from his status as an undocumented worker, rather than from his injury. Adverse inference of Cruz’s choice not to answer questions regarding his status did not qualify as sufficient evidence, especially since it was Cruz’s lawyers who invoked the Fifth, and not Cruz himself.
“They’re looking at immigration status differently and telling employers they have to do more than just ask the question, ‘are you here illegally?’ and assume that a lack of response proves they are,” Wilson said.
The final ruling ordered Kennett Square to continue both medical and disability compensation. The company appealed the decision in 2011, but on July 23, a Pennsylvania Commonwealth Court upheld the ruling in Cruz’s favor.
However, some judges issued opinions clarifying their stance that “we should assume the legislature did not intend to reward those who violate federal law in obtaining employment by allowing them to participate in a social insurance scheme for Pennsylvania workers.”
Mr. Justice Saylor argued that inferences should be given greater weight as evidence, stating that “inferences do not exist in a vacuum, but stem from factual evidence. Where a witness affirmatively refuses to answer a question on grounds that the answer might incriminate him, I would not assign absolutely no evidentiary value to such refusal.”
That being said, the judge still felt the employers should be held responsible for injuries incurred on the job, regardless of immigration status.
“I would be receptive,” he said, “to reconsidering the soundness of the determination that a worker’s immigration status alone can present a lack of earning power for purposes of an employer’s request to suspend benefits, so as to relieve the employer of the burden to demonstrate physical recovery from the injury.”