Roberto Ceniceros

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at rceniceros@lrp.com. Read more of his columns and features.

Column: Workers' Comp

Time to Act on Diversity

By: | February 19, 2015 • 2 min read
Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at rceniceros@lrp.com. Read more of his columns and features.

As the executive director of the Puget Sound Workers’ Compensation Trust in Renton, Wash., Clairmonte Cappelle is keenly aware of the racial and ethnic diversity shift occurring among students in school districts across the nation.

But when the executive director of the self-insured workers’ comp pool for 35 school districts attends workers’ comp conferences and other functions, he hasn’t noticed a corresponding diversity shift in his industry’s workforce or leadership.

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He isn’t hearing industry discussions on specific strategies that might improve claims outcomes when injured workers come from a minority group.

Cappelle’s observation matters, because today’s students of various hues and cultures are our future workers and workers’ comp claimants.

The National Center for Education Statistics projected last year that 2014 would mark the first time that whites would make up less than 50 percent of the total number of students enrolled in public schools while the percentage of minorities grows. Their parents are already a growing segment of our workforce.

Recognition has spread that the insurance industry and workers’ comp service providers need to respond to our country’s changing demographics, but where are the strategies for moving forward?

Some have mentioned that the workers’ comp industry needs to respond, but there hasn’t been discussion on strategies for making that happen.

Cappelle, by the way, isn’t looking at this as a social justice issue. He’s looking at it as someone who must make business decisions to position his organization for success.

It would be helpful to have information on, for example, whether treatment compliance and claims outcomes improve when an injured worker interacts with adjusters, nurse case managers or doctors who understand their cultural sensibilities.

Is there claimant input that would speed claims resolutions, but gets lost when adjusters don’t understand differences in communication styles?

The safety side is more familiar with this. The American Society of Safety Engineers, for instance, has long sponsored forums to help overcome cultural and language barriers when addressing Spanish-speaking workers.

There have also been discussions about insurer communications with millennial employees and information on meeting the health and safety needs of aging workers.

A smattering of recent industry conference sessions have also addressed workplace diversity, with an industry leader or two expressing opinions on how diversifying the workforce can provide a competitive advantage as the insured-client population diversifies.

I have heard at least one CEO for a major third-party administrator discuss the potential advantages of meeting an increasingly diverse U.S. workforce with claims managers who can navigate cultural variations. And the title of “chief diversity officer” has been around for a few years at some major insurers.

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Recognition has spread that the insurance industry and workers’ comp service providers need to respond to our country’s changing demographics, but where are the strategies for moving forward?

“Now that we have identified this as a challenge for us, I am not seeing what the next steps are for us to meet the challenge,” Cappelle told me. “That is the piece that I think is lacking.”

He is right. The country’s changing demographic makeup has been in progress for decades. Just recognizing and discussing the issue is no longer enough.

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Legal Developments

When Comp and Non-Comp Drugs Collide

Workers’ comp payers are worried about poly-substance abuse cases, and the issue of who is liable if a mix of drugs proves lethal.
By: | February 11, 2015 • 5 min read
pill combo

Did pharmaceutical drugs prescribed to treat a work-related fall contribute to an employee’s death?

Or did other drugs prescribed by a personal physician treating a non-industrial illness cause his fatality?

If the pharmaceuticals prescribed to treat his workplace injury merely contributed to the worker’s demise, in combination with the other prescribed drugs, is that enough to trigger worker’s compensation death benefits for the employee’s surviving family members?

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Those questions underlie a legal battle over whether an employer and its worker’s compensation insurer must indemnify the deceased worker’s family. California’s Supreme Court will hear arguments in that legal battle next month in the case of South Coast Framing v. Workers’ Compensation Appeals Board.

While it is a California specific case, it epitomizes a concern shared by workers’ compensation claims payers across the country. They worry about courts forcing them to shoulder liability for adverse outcomes when a workers’ comp claimant consumes a dangerous combination of prescription drugs.

Courts in several states have already ruled that workers’ comp payers are responsible for providing surviving family members with death benefits when workers die due to overdosing on pain medications and other drugs prescribed to treat work-related injuries, said Mark Pew, senior VP at PRIUM.

Courts have reached such conclusions in overdose death cases, even when drug misuse or abuse occur beyond an employer’s control, Pew added.

A Washington state appeals court, for example, ruled in 2012 that a claimant’s widow was entitled to survivor benefits after her husband died after ingesting several prescribed pain medications in combination with alcohol.

Tennessee’s Supreme Court ruled, somewhat similarly, in 2011 that a workers’ widow was entitled to survivor benefits when her husband died after accidentally overdosing on oxycodone prescribed for work-related injuries.

In both cases, the workers’ comp payers argued that claimant behavior — consuming alcohol in one instance and ignoring a doctor’s instructions for consuming the medication in the other case — amounted to an independent, intervening factor that broke the causal connection between the workers’ deaths and their workplace injury.

Workers’ comp payers are extremely concerned about poly-substance abuse cases where worker’s comp claimants have been prescribed multiple medications that can lead to harmful outcomes such as addiction and death.

In California, courts have also held employers responsible for adverse results from medical care, including pharmaceutical prescriptions, given to treat workplace injuries, said Robert G. Rassp, a California worker’s comp claimant attorney at the Law Offices of Robert G. Rassp.

In one case, California’s high court ordered the defendant to provide treatment for a worker grown dependent on opioids prescribed for a work injury even though the claimant had a history of illegal drug use and dependence pre-existing the workplace accident that led to the opioid addiction, Rassp said.

Workers’ comp payers are extremely concerned about poly-substance abuse cases where worker’s comp claimants have been prescribed multiple medications that can lead to harmful outcomes such as addiction and death, Rassp and others said.

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But the case that will go before California’s Supreme Court on March 3rd is different, said Michael McClain, general counsel for the California Workers’ Compensation Institute. CWCI members include worker’s comp insurers and self-insured employers. The organization filed an amicus brief supporting the employer and insurer going before the Supreme Court.

While the worker’s death resulted from ingesting pharmaceutical drugs, California’s Supreme Court will review the burden of proof and causation standard required to determine whether the employer and insurer in the case must provide benefits to the worker’s survivors, McClain elaborated.

The case addresses worker’s comp death benefits sought by Brandon White’s surviving spouse and three children. They allege White’s death resulted from a work injury and “industrially prescribed medications,” court records state.

White died in 2009 after consuming amitriptyline, gabapentin and hydrocodone, prescribed by a worker’s compensation doctor treating back, head, neck and chest injuries caused when he fell from a roof while working for South Coast Framing Inc., the court records show.

But the exact role the drugs played in his death was complicated by his consumption of Xanax and Ambien, prescribed by a personal physician for anxiety and sleeping difficulties.

A worker’s comp judge found that White’s death resulted from medications consumed as a result of his industrial injury. South Coast Framing and its insurer, Redwood Fire and Casualty Co., administered by Bershire Hathaway Homestate Cos., filed for reconsideration.

But California’s Worker’s Compensation Appeals Board agreed with the judge’s finding and denied reconsideration.

Upon further appeal, however, a California appeals court reversed and denied the claim, essentially finding insufficient evidence that the prescriptions White consumed for his industrial accident caused his death. White’s wife then appealed to California’s Supreme Court.

In an amicus brief filed to the Supreme Court in support of White’s family, the California Applicant’s Attorneys Assn. argues that the appeals court erred in denying death benefits because it did so by introducing a new, more rigorous standard.

The appeals court erred, the attorneys argue, when it found that one of the drugs prescribed to treat White’s work injury was not a “material factor contributing” to his death.

They argue that the appeals court ignored standing law and should have made its final determination based on whether the drug was a “proximate” or “contributory” cause of death, not a “material” or “substantial” cause.

Now, records show that California’s high court is set to answer the question of whether a workers’ comp death benefits claim has “a separate and distinct causation standard and burden of proof requiring that an industrial injury constitute a ‘material factor’ contributing to the employee’s death, or does the standard require only that the industrial injury be a ‘contributing cause’?”

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The CWCI in its amicus brief, however, asks the Supreme Court to reject an “effort to shift the burden of the decedent’s non-industrial pharmaceutical abuse onto the workers’ compensation system.”

CWCI further argues that Court of Appeal decision denying compensation should be upheld “as a proper application of the burden of proof’ and substantial evidence standard.”

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at rceniceros@lrp.com. Read more of his columns and features.
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WC Cost Trends

Increase Seen in Questionable Drug Screens

New research reveals workers’ comp claimants receiving urine drug tests when doctors have not prescribed opioid pain medications.
By: | February 3, 2015 • 5 min read
drug test

Research results to be published later this year will document growing incidences of giving workers’ compensation claimants urine drug tests even when doctors have not prescribed opioid pain medications.

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Medical treatment guidelines call for doctors to use urine drug screen testing to determine whether patients they have prescribed addictive opioids to engage in aberrant behavior, such as doctor shopping for multiple prescriptions or selling the drugs rather than consuming them as prescribed.

But new California Workers’ Compensation Institute research results document a growth in cases of injured workers given drug tests even though a doctor has not prescribed opioid pain killers, said CWCI President Alex Swedlow.

“We see people getting tested to a greater and greater extent and more injured workers getting tested regardless of whether or not they have an opioid prescription,” Alex Swedlow, California Workers’ Compensation Institute president

Swedlow plans to publish the new findings in advance of CWCI’s upcoming annual meeting.

Questions about the overuse of drug screens as unnecessary workers’ comp cost drivers are not new, having surfaced nearly three years ago. But the new CWCI research is based on recent claims data and shows “continued significant increases” in drug testing with questionable application, Swedlow said.

“We are seeing continued, significant increases in the percentage of drug tests relative to all lab tests, the average number of tests per claim, as well as the percentage of the injured workers who are receiving drug tests without a corresponding schedule II or III opioid prescription,” Swedlow said. “We see people getting tested to a greater and greater extent and more injured workers getting tested regardless of whether or not they have an opioid prescription.”

Swedlow believes the practice has become “a real revenue center.” His new research will update CWCI’s past findings on opioid-related drug screening.

While CWCI’s research is based on California claims data, observers expect that similar practices occur in other jurisdictions.

Across the nation, geographic pockets exist where drug-testing overutilization occurs and other regions where underutilization occurs, said Michael Gavin, president of PRIUM, a workers’ comp cost containment company owned Ameritox, a pain medication monitoring entity.

Gavin pointed to a Workers Compensation Research Institute study released last year reporting that sizable increases in drug testing occurred across some states while the percentage of longer-term opioid users receiving testing services remained low in other states.

Organizations such as the American College of Occupational and Environmental Medicine (ACOEM) and various state agencies developed medical treatment guidelines that include the recommended drug screening.

Their work followed an alarming epidemic of patients overdosing or becoming dependent or addicted to the medications.

The following increase in drug screening came with criticisms that the overuse of the testing drives unnecessary expenses for workers’ comp payers.

No Evidence of Drop in Pain Meds

CWCI reported in 2012 that drug testing was becoming a significant workers’ comp cost driver. It estimated that for 2011, California insurers and self-insured employers spent $98 million for the drug tests.

CWCI’s study found that the volume of drug testing rose 4,537 percent from 2004 to 2011, increasing from 4,012 tests to 186,023. The average amount paid per test, meanwhile, rose from $81 to $207.

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Observers in other states similarly complained of a sudden spike in bills for drug-testing while raising concerns that the tests were often administered in cases where they were not necessary.

Even though research such as CWCI’s work shows the drug screening of injured workers has skyrocketed, he has yet to observe a corresponding drop, to the extent he would expect, in the prescribing of the narcotic pain medications, said Brian Carpenter, senior VP, product development and clinical programs for pharmacy benefit manager Healthcare Solutions Inc.

Drug tests uncovering claimant’s aberrant behavior have resulted in doctors halting opioid prescriptions and notifying workers’ comp payers who have closed such claims, Carpenter said.

Logically, though, he would expect a greater decrease in the number of opioid medications prescribed by doctors because workers’ comp payers are footing the bill for more and more of the drug tests.

“Drug screening creates some mitigation,” Carpenter said. “I am not saying that it doesn’t. But you are not seeing what you would expect to see with those kinds of increases in uses of those tests. You are not seeing the decreased use in opioids as we should see with increased urine drug screens.”

You would expect to see some decrease in opioid prescribing accompany the urine tests, although not in an exact proportion to the amount of testing, said Kathryn L. Mueller M.D., a medical professor at the University of Colorado in Denver.

Not all drug screen test results pointing to patient abnormal behavior lead to a doctor discontinuing a pain medication prescription, added Mueller, who is also ACOEM president and medical director for Colorado’s Division of Workers’ Compensation.

Drug testing is “the medical standard of care so there shouldn’t be a question of whether it has to be done,” Mueller said.

She knows of plenty of cases where Colorado doctors have immediately stopped prescribing opioids due to test results, Mueller said.

“Part of what you have to understand is we are not doing it for the money, we are doing it for the patient care,” Mueller added.

Testing protects both patients and doctors by preventing overdoses, deaths, the illegal sale of prescribed drugs and other problems, Mueller added.

Yet the overuse of tests does occur, driving claims’ payer expenses, Mueller said. About 10 percent to 20 percent of patients show a need for a “shift in therapy,” away from being prescribed opioids, Mueller continued.

That means drug screen testing can’t possibly be useful every time a script for opioids is written, especially when the majority of patients are not misusing the drugs or are not likely to do so in the future.

But sufficient scientific evidence on how often testing should occur is lacking, so more studies are in order, Mueller said.

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“That is something that should be looked into,” she said.

Care should be taken in making blanket statements regarding the use of drug screening in cases where opioids are not prescribed, Gavin added. Doctors could be evaluating patients for many other prescribed drugs which can also be dangerous if used improperly.

Still, adjusters and medical personnel alike may not be acting on drug test results showing a patient’s questionable behavior, Gavin said. Greater education is needed to improve their responses.

“There are a number of inconsistent urine drug screens that should lead to medical change, but do not because the medical community is under-prepared to use the tool that has been placed at their disposal,” he said.

Roberto Ceniceros is senior editor at Risk & Insurance® and chair of the National Workers' Compensation and Disability Conference® & Expo. He can be reached at rceniceros@lrp.com. Read more of his columns and features.
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