Take a Proactive Approach to Reduce Opioid Liability Risk
Workers’ comp payers are increasingly on the hook for problems related to opioids prescribed for injured workers, according to a new report. The National Safety Council examined several recent cases and issued a warning and suggestions for employers and insurers to take steps to protect injured workers and themselves.
“Recent court decisions have determined that in certain circumstances, overdoses suffered by injured workers from opioid pain medications prescribed for occupational injuries are compensable by the workers’ compensation insurer,” the report noted. “Employers and their workers’ compensation insurance carrier have been ordered to pay for detoxification and medical-assisted treatment services as well as death benefits to surviving family.”
The NSC cited more than two dozen cases from state appellate or state Supreme Court decisions between January 2008 and March 31, 2015. “These cases demonstrate that it is not a regional issue but a national problem meriting employer and workers’ compensation program action,” the report said. “The courts relied on several key legal concepts.”
Proximate cause, for example, is identified as “any legally recognizable set of facts which, in natural or probable sequence, produced the individual’s injury.” If a worker slipped on spilled water at work and sustained an injury, the spilled water is the proximate cause of the injury.
The “chain of causation” determines whether any injury after the original is related to the workplace injury. Sometimes a separate action by the injured worker can be considered an independent intervening act, or superseding cause. In such a case, the intervening act breaks the chain of causation and ends the liability for the workplace injury.
“For the cases reviewed in this paper, the chain of causation is clear,” the report said. “A workplace injury occurred. The injured worker received treatment that included prescription pain medications and subsequently died of an opioid-related prescription drug overdose. The legal question at the center of all these cases is whether an intervening action broke the chain of causation to the workplace injury.”
States differ in their workers’ comp laws and rules of evidence. Nevertheless, in the majority of cases noted in the report overdose deaths of injured workers may be compensable “even when the medication is not taken as prescribed, taken with alcohol or inappropriately prescribed.”
Employers and insurers are advised to reduce their risks and potential compensable costs related to the use of opioid pain medications in workers’ comp claims by:
- Requiring workers’ compensation and network providers to use opioid prescribing guidelines issued by the American College of Occupational and Environmental Medicine. These include guidelines on opioid prescribing thresholds and recommend precautions for the prescribing provider. Among the precautions are undertaking thorough patient histories with a more detailed screening if the treatment is to continue beyond two weeks, urine drug monitoring, checking the state prescription monitoring database, avoiding co-prescribing benzodiazepines with opioids, and discontinuing treatment when patients have reached meaningful functional recovery.
- Using caution and requiring prior approval for the use of methadone to treat chronic noncancer pain.
- Screening injured workers for depression, mental health conditions, and current or prior substance use.
- Requiring all pharmaceuticals be purchased and managed by a pharmacy benefit manager.
- Educating all workers about the hazards associated with prescription pain medication use. “Many workers do not understand the unique risks and dangers posed by opioid pain medications,” the report said.
Injury Report Lag Time Remains a Challenge
Workers’ compensation insurers can’t throw their resources into managing a workplace injury until they know about it.
When they eventually learn of an injury after policyholder delays in reporting it to them, the golden hour for providing optimal medical care and facilitating an ideal return-to-work scenario may be lost.
Research results released earlier this summer by NCCI Holdings Inc. document the extent of such losses. The findings confirm the commonly-held knowledge among worker’s comp practitioners that delays in delivering appropriate medical care and applying claims-resolution best practices often drive additional, unnecessary costs.
NCCI reviewed claims data from 44 states before reaching the conclusions contained in its research brief titled “The Relationship Between Accident Report Lag and Claim Cost in Workers Compensation Insurance.” It found that the median cost of claims was lowest for injuries reported to insurers after the day when an accident occurs, but within two weeks of the incident.
Claims reported during the third week following an injury experienced cost increases that were 35 percent higher relative to those reported during week two. For those reported during week four, the median cost rises another 12 percent. It drops a bit for claims reported after week four although costs remain greater than those reported during the first two weeks.
Claims reported to insurers on the same day as an injury occurs, however, experience costs that are 25 percent more than those reported during week one.
“Claims reported on the day of injury likely include very severe injuries that require immediate medical attention,” NCCI’s research brief states. “Such claims often require extensive medical care and an extended recovery time away from work.”
“Really, it’s communication, and the sooner that communication can begin the sooner we as claims people can do our jobs.” — Glen Pitruzzello, VP of workers comp and group benefits claim practices, The Hartford
Several factors drive additional costs when claims are not promptly reported to insurers, sources said.
An injured worker may seek help from a primary, internal-medicine physician or family doctor who may not understand occupational exposures, said Adam L. Seidner, M.D., and global medical director at Travelers.
The doctor may excel at treating family ailments, yet may not be well acquainted with proven occupational-medicine practices, such as applying a sports medicine approach for treating musculoskeletal injuries.
In contrast, claims adjusters and nurse case managers can assist a worker whose injury is promptly reported to an insurer. They can help him, for example, receive treatment from an orthopedic specialist capable of providing the greatest care possible for their specific condition, Seidner said.
The risk of recidivism also increases when the injured worker doesn’t receive appropriate care, he added. They may return to the job too soon, risking reinjuring themselves.
“Then we have to put them back in the system with the right people (providing treatment) and the medical costs really increase because we are trying to get things done correctly,” Seidner said. Medical expenses in such cases can increase 100 percent.
Seidner will speak at the National Workers’ Compensation and Disability Conference & Expo scheduled for November 11-13 at Mandalay Bay in Las Vegas.
WCWCHe will be joined by Marcos Iglesias M.D., VP and medical director at The Hartford along with Mel Belsky M.D. and medical director, workers’ comp program, for Safeway Inc. They will present a breakout session titled “The Workers’ Comp Doctor’s Prescription for Medical Intervention.”
They will discuss how opportunities to manage injuries to their optimal conclusions evaporate when claim handlers ignore medical intervention’s power. Denise Algire, director managed care & disability, corporate risk at Safeway Inc. will moderate the session.
Meanwhile, the NCCI research brief also documents that as report lag increases attorney involvement grows with 13 percent attorney participation in claims reported immediately. That jumps to 32 percent when insurers receive notification after week four.
“This suggests that the complexity of resolving a claim increases as the report lag increases,” the NCCI paper states.
Glen Pitruzzello, VP of workers comp and group benefits claim practices at The Hartford agrees that medical outcomes improve with earlier reporting of a claim.
The insurer can help the claimant navigate the medical system, connecting them with nurse case managers when necessary, and facilitating communication with the treating doctor, he explained.
On the indemnity side, insurers can also help by explaining the benefit process to injured workers and help the employer to develop a return-to-work plan, Pitruzzello said.
“Really, it’s communication and the sooner that communication can begin the sooner we as claims people can do our jobs,” Pitruzzellos said. “Part of it is facilitating payment of necessary medical care and facilitating return to work.”
Indeed, NCCI’s findings suggest that when insurers don’t receive notice of injuries, the related claims become more complex to settle and they involve a longer period before the injured worker can return to the job.
Managing Chronic Pain Requires a Holistic Strategy
Chronic, intractable pain within workers’ compensation is a serious problem.
The National Center for Biotechnology Information, part of the National Institutes of Health, reports that when chronic pain occurs in the context of workers’ comp, greater clinical complexity is almost sure to follow.
At the same time, Workers’ Compensation Research Institute (WCRI) studies show that 75 percent of injured workers get opioids, but don’t get opioid management services. The result is an epidemic of debilitating addiction within the workers’ compensation landscape.
As CEO and founder of Integrated Prescription Solutions Inc. (IPS), Greg Todd understands how pain is a serious challenge for workers’ compensation-related medical care. Todd sees a related, and alarming, trend as well – the incidence rate for injured workers seeking permanent or partial disability because of chronic pain continues to rise.
Challenges aside, managing chronic pain so both the payer and the injured worker can get the best possible outcomes is doable, Todd said, but it requires a holistic, start-to-finish process.
Todd explained that there are several critical components to managing chronic pain, involving both prospective and retrospective solutions.
Prospective View: Fast, Early Action
“Having the wrong treatment protocol on day one can contribute significantly to bad outcomes with injured workers,” Todd said. “Referred to as outliers, many of these ’red flag’ cases never return to work.”
Best practice care begins with the use of evidence-based UR recommendations such as ODG. Using a proven pharmacological safety and monitoring opioid management program is a top priority, but needs to be combined with an evidence-based medical treatment and rehabilitative process-focused plan. That means coordinating every aspect of care, including programs such as quality network diagnostics, in-network physical therapy, appropriate durable medical equipment (DME) and in more severe cases work hardening, which uses work (real or simulated) as a treatment modality.
Todd emphasized working closely with the primary treating physician, getting the doctor on board as soon as possible with plans for proven programs such as opioid Safety and Monitoring, EB PT facilities, patient progress monitoring and return-to-work or modified work duty recommendations.
“It comes down to doing the right thing for the right reasons for the right injury at the right time. To manage chronic pain successfully – mitigating disability and maximizing return-to-work – you have to offer a comprehensive approach.”
— Greg Todd, CEO and founder, Integrated Prescription Solutions Inc. (IPS)
Alternative Pain Management Strategies
Unfortunately, pain management today is practically an automatic move to a narcotic approach, versus a non-invasive, non-narcotic option. To manage that scenario, IPS’ pain management is in line with ODG as the most effective, polymodal approach to treatment. That includes N-drug formularies, adherence to therapy regiment guidelines and inclusive of appropriate alternative physical modalities (electrotherapy, hot/cold therapy, massage, exercise and acupuncture) that may help the claimant mitigate the pain while maximizing their ongoing overall recovery plan.
IPS encourages physicians to consider the least narcotic and non-invasive approach to treatment first and then work up the ladder in strength – versus the other way around.
“You can’t expect that you can give someone Percocet or Oxycontin for two months and then tell them to try Tramadol with NSAIDS or a TENS unit to see which one worked better; it makes no sense,” Todd explained.
He added that in many cases, using a “bottom up” treatment strategy alone can help injured workers return to work in accordance with best practice guidelines. They won’t need to be weaned off a long-acting opioid, which many times they’re prohibited to use while on the job anyway.
Chronic Pain: An Elusive Condition
Soft tissue injuries – whether a tear, sprain or strain – end up with some level of chronic pain. Often, it turns out that it’s due to a vascular component to the pain – not the original cause of the pain resulting from the injury. For example, it can be due to collagen (scar tissue) build up and improper blood flow in the area, particularly in post-surgical cases.
“Pain exists even though the surgery was successful,” Todd said.
The challenge here is simply managing the pain while helping the claimant get back to work. Sometimes the systemic effect of oral opioid-based drugs prohibits the person from going to work by its highly addictive nature. In a 2014 report, “A Nation in Pain,” St. Louis-based Express Scripts found that nearly half of those who took opioid medications for more than a month in their first year of treatment then refilled their prescriptions for three years or longer. Many studies confirm that chronic opioid use has led to declining functionality with reduced ability to recover.
This can be challenging if certain pain killers are being used to manage the pain but are prohibitive in performing work duties. This is where topical compound prescriptions – controversial due to high cost and a lack of control – may be used. IPS works with a reputable, highly cost-effective network of compound prescription providers, with costs about 30-50 percent less than the traditional compound prescription
In particular compounded Non-Systemic Transdermal (NST) pain creams are proving to be an effective treatment for chronic pain syndromes. There is much that is poorly understood about this treatment modality with the science and outcomes now emerging.
Retrospective Strategies: Staying on Top of the Claim
IPS’ retrospective approach includes components such as periodic letters of medical necessity sent to the physician, peer-to-peer and pharmacological reviews when necessary, toxicology monitoring and reporting, and even addiction rehab programs specifically tailored toward injured workers.
Todd said that the most effective WC pharmacy benefit manager (PBM) provides much more than just drug benefits, but rather combines pharmacy benefits with a comprehensive ancillary suite of services in a single portal assisting all medical care from onset of injury to RTW. IPS puts the tools at the adjustor fingertips and automates initial recommendations as soon as the claim in entered into its system through dashboard alerts. Claimant scheduling and progress reporting is made available to clients 24/7/365.
“It comes down to doing the right thing for the right reasons for the right injury at the right time,” Todd said, “To manage chronic pain successfully – mitigating disability and maximizing return-to-work – you have to offer a comprehensive approach,” he said.
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with IPS. The editorial staff of Risk & Insurance had no role in its preparation.