Opioid Overdose Epidemic—a Major ConCern in the Workers’ Compensation System
Prescription drug abuse is a major concern in the workers’ comp system. Here we examine this concern in the light of two recent cases.
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When it comes to fair claims settlement by an insurance company, medical peer review is a very significant process. This helps determine whether the treatments provided to the patient were medically necessary, and whether the claim is a legitimate one. In many cases, a reliable peer review helps insurers avoid paying huge dollar amounts to undeserving people. A Case of Employee Conduct Creating an “Intervening” Cause of Death A recent example wherein medical peer review and medical claims review had an important role to play is that of Charles Kilburn, a trim carpenter who was involved in a motor vehicle accident. The accident occurred in 2008, which resulted in fractures to the vertebrae in his neck and disc herniations in his lower back. Court documents show that Kilburn underwent surgery to repair his injuries but continued to experience difficulty walking, and also back pain. Though his doctors recommended further surgery, the insurance company denied it after a peer review by three physicians. They also denied a recommendation for epidural steroid injections. 0 Kilburn was referred to a pain management clinic and restricted from returning to work. In January 2010, a pain management specialist found that Kilburn was taking extra opioids convinced that the prescribed medicine was no longer effective. The specialist recommended a program to wean Kilburn from the opioid medication, and he did agree to it. Unfortunately, Kilburn died later that month from acute oxycodone toxicity with contributory causes of hypertension, and alcohol and tobacco use. Kilburn’s widow was found ineligible by the Tennessee Supreme Court to receive workers’ comp death benefits because her husband’s death was caused by conduct not related to his work accident. Kilburn’s wife filed a claim asserting that she had met her burden of proof to show that her husband’s death was a direct and natural consequence of his work injury, and a Tennessee chancery court determined that Kilburn’s death was compensable. Kilburn’s employer filed an appeal claiming that Kilburn’s conduct created an intervening cause of death, and this appeal was referred to a Special Workers’ Compensation Appeals Panel, and later transferred to the high court for review. A five-judge panel of the Tennessee Supreme Court reversed the chancery court’s decision relying on Tennessee case law that holds that a worker’s conduct can limit compensability of subsequent injuries that are a direct and natural result of a compensable primary injury. The Court concluded that since Kilburn did not take his pain medicine in keeping with his physician’s instructions, it caused his demise. Moreover, his
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overconsumption of his medication and use of alcohol while taking the medication against his doctor’s instructions were also contributing factors to his death. Kilburn’s death was no longer causally related to his work-related injury and his overdose was an independent intervening cause. Injury Compensable when Workers’ Comp Medications Contribute to Employee’s Death However, in a similar case related to another injured carpenter in California, the California Supreme Court ruled in favour of his family saying that they should receive workers’ comp death benefits. Brandon Clark, a 36-year-old carpenter fell off a roof at work in 2008 and suffered back, head, neck and chest injuries. His workers’ compensation physician prescribed an antidepressant Elavil, Neurontin, a drug used to treat neuropathic pain and Vicodin. In January 2009, Clark was also prescribed Xanax and Ambien by his personal physician for anxiety and insomnia. A medical record analysis showed that he died the following July from the combined effects of the prescribed drugs and associated early pneumonia. In this case, a California workers’ compensation judge awarded benefits finding that Clark’s workers’ comp medications contributed to his death. Clark’s employer and its workers’ comp insurer filed an appeal, and the California 4th District Court of Appeal overturned the workers’ comp judge’s decision in December 2013, finding that the medical testimony in Clark’s case did not adequately establish that his death was caused by his workers’ comp prescriptions. This ruling was unanimously overruled by the California Supreme Court that found that the appellate court improperly ruled Elavil was not a significant or a material factor in Clark’s death. The ruling mentioned the following: •
The appellate court’s analysis failed to honor the difference between tort law principles and the application of the workers’ comp scheme.
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Tort liability only attaches if the defendant’s negligence was a significant or substantial factor in causing injury.
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In the workers’ compensation system, the industrial injury need only be a contributing cause to the disability.
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The physician testimony provided substantial evidence to support the workers’ compensation judge’s finding that Elavil and Vicodin contributed to Clark’s death.
Efforts on to Contain Opioid Overdosing Overprescribing of the pain medications is an ongoing issue in the workers’ compensation system. The U.S. Centers for Disease Control and Prevention has expressed concern in the worsening opioid overdose epidemic and stressed the need for continued action to prevent opioid abuse, dependence and death. Among the 47,000+ drug-related deaths in 2014, 61% involved some type of opioid including heroin. Express Scripts Holding Co., in its latest drug trend analysis reported a decline in the utilization of opioids but an increase in the number of days supply that workers were prescribed. Narcotics still accounted for thirty-six percent of the 25 most commonly dispensed workers’ comp medications in 2014. Apart from the possibility of addiction, overdosing and death, injured workers who are prescribed opioids early in their workers’ comp claim show more delay involved in returning to work and higher medical costs. The World Health Organization has recommended increasing access to naloxone that is used to revive people who overdose on heroin and other opioids, as well as training family and friends in using overdose kits. The CDC has also recommended increasing access to naloxone.
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