Prescription drug abuse stemming from the use of opioids as a remedy for musculoskeletal pain in non-terminally ill patients is a complex and far reaching topic. For purposes of this article we will focus on how to build a workers' compensation case against an employee who is abusing prescription pain medication, either by consumption or for illegal resale. Specifically, as an insurance carrier, third party administrator or employer, how do you effectively use the workers' compensation system to reduce your exposure, using litigation and non-litigation methods, and what are the methods that have been proven successful in court?
Ultimately, in order to prevail before a Pennsylvania Workers' Compensation Judge, and prove that the employee's medication is neither reasonable nor necessary, a multi-pronged approach is required. First, the employee's usage pattern must be established by demonstrating a pattern of aberrant drug behavior and consumption. Second, and perhaps more importantly, the employee's physician'havior must be shown to be equally inappropriate by dispensing these powerful medications without an apparent benefit, without verification that the medication is being used properly and without evidence of weaning and/or use of alternative and less medically compromising pain solutions. Third, cases in which employees are using multiple physicians and/or pharmacies or collecting and filling multiple prescriptions simultaneously, the employee's behavior pattern must be well documented.
From a procedural standpoint, step one is to identify an appropriate specialist in pain management and/or anesthesiology, or a medical review agency. Either of these providers can examine the situation and explain in a report how the medication is being abused. With that information at hand, the next step is to reach out to the doctor in question, by utilizing a credible medical professional for the communication. Often, but not always, prescribing physicians will reconsider their pattern of opioid prescriptions when confronted by a physician willing to make the case for over-prescription of the drugs. Failing that, in an accepted claim, a Utilization Review Request will need to be filed on the prescribing physician in order to have a legal means of challenging the compensability of the medications.
Win or lose, a decision on this topic is likely to go to appeal. To present the strongest possible case, the reviewer referenced above will have presumably prepared the appropriate report for submission on appeal, recognizing that appeals of Utilization Review decisions are called "de novo," meaning that the Judge reviewing the appeal is free to accept new evidence. Specifically, if in conjunction with a toxicology screen it is found that the employee is not taking the medication as prescribed, is taking more than the maximum dose due to obtaining medication from multiple sources, is obtaining his or her medication from multiple pharmacies, is obtaining his or her medication from multiple physicians, or is frequently requesting additional medication from physicians, many Judges will seek to stop the employer's responsibility for this abusive behavior.
Once it has been established that the employee has engaged in inappropriate drug behavior, the same must be established through the cross-examination of his or her prescribing physician. It is appropriate for a physician to inquire if the patient is being prescribed pain medications from any other sources before any medication is dispensed. Frequently, even this most basic safeguard is ignored. The physician should order a toxicology screen before prescribing narcotic pain medications and also order the screens periodically to monitor the employee's use of the drugs. In the event of a toxicology screen with abnormal results, the physician should take appropriate steps to remediate the problem, including ordering follow up screens. Finally, the physician is encouraged to reduce narcotic medications whenever possible, and after a period of continued use. Regrettably, we sometimes see physicians, who hold themselves out as addiction specialists, fail to take steps to reduce or eliminate the use of narcotics.
It must also be noted that with a true addiction issue, some Judges may prefer to see a weaning program formally offered (and paid for) before stopping payment responsibility all at once. At the same time, there is growing recognition that if the addict does not want to wean, no program will be successful for that purpose.
Comment: While the facts of each case are different, the above methodology has been proven successful in cases litigated before Pennsylvania Workers' Compensation Judges. Prescription drug abuse is frequently a two-way street involving the employee and the medical provider. When possible, establishing that both parties bear some measure of responsibility provides the best chance of success for the employer.
Jennifer R. Williams