By Anna Berry
In the midst of a statewide substance abuse crisis, the New Hampshire Department of Labor will launch an Opioid Pilot Mediation Program to voluntarily transition some injured workers away from opioids and into treatment.
“Whenever we get information about workers comp claims, there’s a lot of folks who are getting prescribed very high levels of opioids,” said attorney Edward Sisson, the assistant director of the Workers’ Compensation Division of the NH Department of Labor. (DOL). “There’s a concern that it is a danger to these workers.”
According to Sisson, the goal is to bring together injured workers using opioids and insurance carriers through a mediation process to find covered options for non-narcotic pain relief and recovery.
For inspiration, the department looked to Massachusetts, where the Department of Industrial Accidents (DIA) started a first-of-its-kind, two-year pilot program in June 2017 — the Opioid Alternative Treatment Pathway.
The DIA recognized that its litigation process “often failed to adequately address the problem [of opioid addiction] in a timely manner,” according to the Massachusetts’s Office of Labor and Workforce Development’s announcement. The Massachusetts program is available to injured workers with previously settled workers’ compensation claims who continue to treat with opioids, and where insurers seek to discontinue payment for opioids — around 100 cases annually, which previously took a year to settle.
Under the pilot program, a meeting between the administrative judge and the two parties is held within 30 days, and a nurse is assigned to the case to help the injured worker find pain relief beyond addictive narcotics.
While no results have been released yet, the DIA planned to measure success based on data including the number of employees who discontinue opioids and reductions in prescription amounts.
In 2015, the nonprofit National Safety Council reported that the widespread use of opioids among injured workers put them at risk for addiction and fatal overdose, although the Centers for Disease Control and Prevention (CDC) wasn’t tracking the number of overdoses among injured workers specifically.
The report also noted that “[c]ourts have ruled that in many circumstances addiction and death arising from opioids prescribed to injured workers is compensable.”
Over the last decade, the rate of unintentional opioid-related deaths has skyrocketed across New England. Massachusetts reported 29 overdose deaths per 100,000 residents in 2016 — a 271 percent increase from 2010, according to the most recent data available from the CDC.
During the same period in New Hampshire, the rate of overdose deaths increased 300 percent to 35.8 deaths per 100,000 people. Comparatively, the national average was 13.3 deaths in 2016.
The state’s Opioid Mediation Pilot Program differs from Massachusetts’ by taking cases before and after lump sum settlements and by relying on volunteer mediators instead of judges, a suggestion from the workers’ compensation bar.
“They thought that that added value,” Sisson said. “[Injured workers] would see the mediators were there to help and not to make money.”
The use of volunteers isn’t new for the NH DOL, which has a well-functioning Civil Penalty Appeals Board, Sisson noted.
And, unlike Massachusetts, New Hampshire doesn’t have a backlog of workers compensation cases. In 2017, the department reported 5,034 employees who were disabled from work or out of work due to their injury for four or more days. That year, 1,888 workers compensation hearings were scheduled and 1,424 cases resulted in a hearing/decision, with 612 lump sum settlements.
A significant number of claims or hearings involve injured workers using opioids, Sisson said, although the state doesn’t have good data on the issue.
According to the CDC, 44 percent of all workers’ compensation claims with prescriptions had at least one prescription for opioids based on 2016 data from 40 states.
The DOL hosted an initial training in January for attorneys who have represented both claimants and carriers and have volunteered as mediators for the pilot program, which is voluntary for injured workers and confidential.
Attorney Brian C. Shaughnessy signed up because he wants to “be part of the solution.”
“The majority of mediators [at the training] have represented workers and we understand from … our clients what’s going on with chronic pain,” he said. “You have empathy for them.”
Shaughnessy said he’s watched the pendulum swing — five years ago, he had to fight to get insurance carriers to cover alternative treatments. Today, carriers are more proactive because of the high cost of opioid prescriptions, he argued.
But, he also worries that injured workers who have been doing well on opioids for years could now find that “the deck is being stacked against them” as claims are denied more frequently and states tighten restrictions on narcotic prescriptions.
“They’re taking away the only thing that … gives them quality of life,” he said.
While Shaughnessy said some of his clients might be hesitant about the mediation program because “everyone’s going into it with the mindset they need to stop using opioids,” other clients would welcome the opportunity.
Sisson said he expects the pilot program to be “a learning experience” involving feedback from both sides as well as mediators. And, treatment options would be flexible.
“Not everyone can pack up their belongings and go somewhere [for treatment] for an extended period of time,” he said.
Edward Stewart, who represented injured workers for 39 years before leaving active practice, was also at the training.
“I represented numerous clients who had become dependent on opioid medication, and I witnessed the very negative impacts from this condition,” he wrote in an email. “I was also involved fighting insurance carriers who wanted to no longer pay for these medications. … Due to the nature of the opioid problem, I believe that working with the parties to craft alternatives and solutions is in both parties’ best interests.”
Although Sisson said he doesn’t expect the pilot program to include large numbers, he hopes the new treatment opportunities can create a better quality of life for people in pain.
“For some of the injured workers who recognize this can be an issue, it could help them,” he said. “Even if we can help one person, then we’d be happy … we want to do our part.”
This story was produced by the Granite State News Collaborative as part of its Granite Solutions reporting project. Read more stories and find resources on behavioral health at www.collaborativenh.org. Founding members: NH Bar News, The Berlin Daily Sun, Business NH Magazine, The Eagle-Tribune, The Laconia Daily Sun, Manchester Ink Link, The Marlin Fitzwater Center at Franklin Pierce Univ. NH Business Review, NH PBS, Purple States and Seacoast Media Group.
Granite State News Collaborative
Learn more about behavioral health in New Hampshire as part of the Granite State News Collaborative’s Granite Solutions reporting project.
The New Hampshire Bar News is a founding member of the collaborative. Stay tuned for additional coverage at www.collaborativenh.org
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