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Bar News - August 17, 2016

Workers’ Comp & Personal Injury: Opioids and the Injured Worker: Collaboration that Could Save Lives


The local news is filled with stories of the opioid crisis in New Hampshire, where deaths occur on an almost daily basis. Now, the trending issue relates to workers’ compensation claims involving the ongoing use of opioids in the treatment of chronic pain and insurance carriers’ strategies in helping to wean injured workers from opioids.

According to the Morbidity and Mortality Weekly Report from the Centers for Disease Control and Prevention on Jan. 1, 2016, New Hampshire’s drug overdose deaths in 2014 were at 26.2 deaths per 100,000 persons, earning New Hampshire the unwelcome distinction of having the third-highest drug overdose death rate per capita in the country.

From 2013 to 2014, New Hampshire had the second-highest increase in drug overdose deaths – 73.5 percent – behind only North Dakota at 125 percent. The report found that “[n]atural and semisynthetic opioids, which include the commonly prescribed opioid pain relievers, oxycodone and hydrocodone, continue to be involved in more overdose deaths than any other type of opioid,” though “illicitly manufactured fentanyl cannot be distinguished from prescription fentanyl in death certificate data.”

Just since March 2016, I have personally litigated several hearings at the NH Department of Labor dealing solely with the issue of ongoing prescriptions of opioids to injured workers. There is an inherent dichotomy when dealing with an injured worker who has been prescribed opioids for a number of years and the insurance carrier’s attempt to help wean the injured worker from narcotics. Injured workers believe they cannot live without opioids. In my experience, a majority seem to be reluctant to wean or even cut down on the dosage.

These patients are experiencing some level of pain, but many are unaware of the recent medical studies that support the shortcomings of long-term opioid use for perceived high levels of pain. Medical records reviewed in these cases show that after an increase in opioid dosage, there is a brief dip in pain scores, but then, after a short period of time, the pain increases such that additional increases in narcotics are required. Long-term ingestion of opioids causes opioid-induced hyperalgesia, a condition that results in the need for dose escalation, thus placing the injured worker in a vicious cycle.

The insurance carrier often looks at the bigger picture. The data and empirical evidence reveals the number of injured workers prescribed opioids, and cost of these opioids continues to rise. In many cases, the cost of opioids for a one-month supply is more than $1,000. And it is not just the cost of the opioids, but the cost of other prescription medications as a result of side-effects, such as opioid-induced constipation, that contributes to the expense of ongoing opioid use. A one-month supply of Relistor or Linzess (medications prescribed for opioid-induced constipation) may cost an additional $1,500 or more per month.

But cost is not the carrier’s only motivating factor in an attempt to wean the injured worker from opioids. It is the adverse side effects of chronic opioid use and the health and well-being of the injured worker that concerns insurers and their representatives.

The health of the injured worker is often the motivating factor in an insurer’s attempt to discontinue the narcotics. In most cases, an insurer will offer to pay for an inpatient detoxification program to help wean the injured worker off opioids. Insurers also offer to pay for alternative therapies or strategies to help cope with the pain, such as behavioral therapy; however, a vast majority of injured workers do not accept these offers. An insurer is then left with the only option – deny payment for these opioids, and have the Department of Labor intervene to decide whether the ongoing opioids are reasonable and required given the nature of the work injury.

Given the stated ethical standards within the medical community and the political will to address the opioid addiction crisis in our state, legislators and others in the workers’ compensation system have the potential to work together to help address the epidemic.

Physicians are required to “adhere to the principles outlined in the, Federation of State Medical Boards’ “Model Policy on the Use of Opioid Analgesics and the Treatment of Chronic Pain.” This model policy indicates that physicians must develop a treatment plan and goals which “include reasonably attainable improvement in pain and function; improvement in pain-associated symptoms such as sleep disturbance, depression and anxiety...”

Similarly, the nurse practitioner’s ethical standard is governed by the recommendations of the Centers for Disease Control and Prevention’s (CDC) National Center for Injury Prevention and Control. The CDC’s policy maintains that opioid therapy may continue “only if there is clinically meaningful improvement in pain and function that outweighs risks to patient safety.”

The CDC policy defines “clinically meaningful improvement” as “30 percent improvement in scores for both pain and function.” In most instances, the insurance carrier is simply requesting that if the injured worker does not exhibit any “clinically meaningful improvement” toward the stated goals of decreased pain and increased function, then a weaning schedule should be implemented by the physician or nurse practitioner.

The Legislature could choose to amend the workers’ compensation statute to address this opioid crisis and enact a provision requiring that injured workers show “clinically meaningful improvement” in order to continue an insurer’s obligation to pay for opioid medication. In addressing this issue together, attorneys, state agencies, and the legislative and medical communities could collaboratively stem the cost in human lives of the opioid crisis in New Hampshire.

Gary Harding

Gary S. Harding is an associate at Bernard & Merrill where his practice is focused primarily in the defense of workers’ compensation claims. He can be reached by email or at (603) 622-8454.

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