Within the last two decades, the costs associated with pharmaceuticals have risen more rapidly than any other type of medical cost. It is estimated that in 2011, prescription drugs will comprise nearly 15 percent of total national health care spending. In workers’ compensation cases painkillers represent 55 percent of the costs of prescriptions with 25 percent of those specifically narcotic-based prescriptions.
In 2009, the FDA in public meetings noted the following: Despite existing efforts to address the risk associated with opioid drugs, misuse and abuse are increasing. Data from multiple sources, including the Centers for Disease Control (CDC) and the Substance Abuse and Mental Health Services Administration (SAMHSA), indicate increasing misuse and abuse of prescription opioid analgesic medications over the past decade. For example, SAMHSA’s National Survey on Drug Use and Health estimates that 11 million Americans over the age of 12, or 4.7 percent of that population, took pain relievers for non-medical use in 2002. In 2007, that number increased to 12.5 million or 5.0 percent of the population over [the age of] 12. Likewise, data compiled by SAMHSA show a significant increase from 2000 to 2006 in admissions to substance abuse treatment services for individuals abusing opioid analgesics. Much of this misuse has involved the extended-release opioid analgesics and methadone. To address this public health problem, the agency has indicated [that] it will require REMS [(Risk Evaluation and Mitigation Strategies)] for certain opioid products.
In addition to the obvious public health concerns, the financial costs associated with this problem specific to workers’ compensation are significant. While Group Health Insurance as a whole pays 72 percent of the average wholesale price of prescription drugs, workers’ compensation pays roughly 125 percent of the average wholesale price. Additionally, while generic equivalents are prescribed when available 79 percent of the time for workers’ compensation claims, over 56 percent of workers’ compensation prescription costs are associated with drugs that have no generic equivalent. Finally, when again compared with group health insurance, workers compensation has much more of a long term cost consequence in that substantial quantities of medical service are routinely delivered for many years following the date of injury. As a result, estimates of the annual cost for the costs and reserves on serious claims must fully account for the compounding effect of medical inflation. Such inflation could double the cost of these services within just eight years from the initial first year cost.
Despite the escalated costs of narcotic prescriptions, chronic pain treatment is often the last issue addressed from a mitigation standpoint in workers’ compensation cases. Indemnity wage loss exposure has perhaps been settled or alternatively the claim languishes on due to chronic pain treatment becoming the final resort for what has otherwise been labeled failed treatment. Narcotic prescription levels are increased as claimants become tolerant to high level of opioids, requesting higher levels to ease their chronic pain. Vocational efforts such as return to work offers and labor market surveys are complicated by claimants whose narcotic prescription use may make them unfit to drive, unable to function for full work shifts or incapable of working with or around equipment.
So what should the Pennsylvania Employer/Insurer do insofar as attempting to mitigate this potential long-term prescription exposure in a workers’ compensation claim? Particularly, when facing a claim which might ultimately require approval of a lifetime-calculated prescription Medicare Set Aside mitigating these costs becomes critical before the chance to do so may pass. This article summarizes one mitigation strategy combining an appropriate Independent Medical Examination with the URO process and ultimately, if necessary, a Petition for Review of a UR Petition before a workers’ compensation judge.
A. Selection of an Independent Medical Examiner
One mistake commonly made with workers’ compensation claims is that even after the specific injury has been litigated and/or accepted, surgery or conservative remedies have been exhausted and the claim has morphed into primarily prescription-focused chronic pain management. Nevertheless, the Independent Medical Examiner (IME) selection continues to be referred specifically to a practitioner who specializes in the area of the original work injury. For example, a claimant who suffers from a multi-level discogenic condition with one or more resultant fusion surgeries is repeatedly scheduled to an orthopedic or neurosurgery expert, despite the fact that claimant’s treatment became exclusive to chronic pain management through primarily of Actiq or Fentynl. The patient has become dependant upon the medication for what is often described as maintaining some level of functionality, but otherwise treatment specific to the discs themselves is not occurring.
The reality is that this type of claim is beyond the point of re-litigating the original injury, and there is little chance of a full recovery opinion based on the severity of the original injury and resultant surgery. Thus, the focus should be looking for an assessment of the reasonableness and necessity of the chronic pain management regimen, and a determination of whether this treatment is in fact assisting this patient with goals of returning to work and eliminating pain and disability associated with the injury. This requires an appropriate selection of an IME physician with a specialty and board certification specific to pain management and/or physical rehabilitation. Certainly the pain management/physical rehabilitation specialist could be subject to qualification cross-examination relative to lack of surgical experience. Nevertheless, while the IME has been determined to focus on mitigation of the chronic pain treatment, the pain management specialist is better positioned to provide a reasoned report regarding what constitutes appropriate pain management treatment for the specific condition and circumstance.
In seeking such an opinion, it is important that the inquiry letter to the IME practitioner note that an opinion within a reasonable degree of medical certainty as to the reasonableness and necessity of the specific treatment is sought following the medical history, the record review, and the examination. This examination should be initiated with the understanding that a utilization review will also be filed as soon as possible following the issuance of an IME report.
B. The Utilization Review – Forming the basis for possible subsequent WCJ review
Although an IME opinion may provide support that some or all of narcotic prescriptions are not reasonable and necessary, the IME report does not in and of itself provide a mechanism to alter payment of the prescription. However, it will become critical following the filing of a Utilization Review and receipt of a report from the assigned Utilization Review Organization (URO). The Pennsylvania Workers’ Compensation Act provides that an employer/insurer can request review of a bill prospectively, concurrently, and retrospectively by filing an application for utilization review and it will be reviewed by a provider of licensed in the same profession and having the same or similar specialty as that of the provider of the treatment under review [Section 306 (f.1)(5), 77 P.S. § 531(5)]. The Utilization Review LIBC-601 form must be filed within 30 days of receipt of the medical bill in question. It is important to note that utilization reviews are provider-specific, so if there are multiple providers prescribing narcotic medications, separate utilization reviews are necessary. Within 30 days thereafter, the URO will issue a report as to the reasonableness and necessity of the treatment under review. Should the utilization review determine that the treatment is not reasonable or necessary, the Workers Compensation Act provides an automatic supersedes for only those bills in dispute. Thus, the appropriately worded UR request seeking prospective review with a resultant favorable determination allows denial of continuing bills for that provider.
C. The Review of a UR Petition before a Workers Compensation Judge (WCJ)
Win or lose in the URO determination, if there is an IME report specific to the treatment at issue there is a mechanism for the employer/insurer to successfully litigate the issue of reasonableness and necessity of narcotic prescription before a workers’ compensation judge. Following a UR determination, either party has 30 days to file a Petition to Review UR determination with the Bureau of Workers’ Compensation. Obviously, should employer/insurer succeed in the UR determination and the claimant does not file a Petition to Review, benefits have been mitigated insofar as limiting that provider’s treatment. Should the claimant file a timely appeal, the presence of the IME report provides a potential separate opinion from that of the URO in support of that treatment being unreasonable and unnecessary. This will likely create the leverage of a “two against one” posture when litigating the issue before the judge, which can be critical when dealing with WCJ’s who might look to a treating doctor with more deference than a non-treating examiner.
Should the URO determination be unfavorable, if there is an IME prior that contradicts the determination the employer/insurer could be the one to file the Petition to Review challenging that determination by taking the deposition testimony of the IME physician. While the employer/insurer runs the risk of having the “two against one” situation reversed with claimant providing testimony from both the URO reviewer and the provider at issue, nevertheless employer/insurer gets a chance to present these issues where otherwise they could not have been before a WCJ with the chance of a reversal of the URO determination. It is important to note that no matter which party files the Petition to Review a UR determination, the burden before the WCJ rests at all times with the Defendant to prove that treatment is not reasonable or necessary.
When litigating issues specific to long-term narcotic prescription use before the WCJ, it is important for the defendant/employer to emphasize whether that treatment is actually helping that claimant be functional. Often, the claimant’s own testimony will work against their position because narcotic-dependant claimant’s often testify that no matter how much they take, the pain is not improving. In describing their activities, they candidly admit their lives revolve around taking their medications and the effects those medications have on them, including sleepiness, nausea or limitations as to physical activities. The claimant’s try to show the judge that they are not getting better and thus need the regimen to continue. The defense can show that in reality there is no actual quantifiable functional improvement from this treatment. In combination with testimony from the IME physician detailing that standard practices dictate that if a treatment regimen is not working it should be either changed or discontinued, the claimant’s own testimony can hurt their position. Additionally, many pain management providers are careful to consistently document the subjective complaints of pain throughout the years on each and every visit. The defendant can thus argue, for example, that in the course of five years the complaints of pain never changed from what was referenced to be an eight out of a possible 10 on a pain scale, despite narcotic prescription levels being titrated upwards over time. Another possible attack could be focused on off-label use of certain opioid medications. Some pain management physicians prescribe simultaneous short-acting and long-acting Actiq, which through accepted practices is arguably only approved for terminal cancer patients. Additionally, pain management IME physicians can address dependence issues relative to possible other factors such as prior evidence of prior non-work injury-related drug dependence or emotional or psychological pre-existing issues.
In creating a three-step game plan for IME, UR and WCJ review of long-term narcotic prescription treatment, the employer/insurer can take a proactive position towards ultimately mitigating what can be problematic long-term exposure in a workers’ compensation claim.
John Ziegler is an associate in the firm’s Harrisburg office.