In a case that is noteworthy considering the increased use of narcotic pharmaceuticals to treat injured workers, a state appeals court has ruled that a dependent of an injured worker who overdosed on doctor-prescribed opioid is entitled to workers’ comp death benefits.
Opioids, which include drugs such as Oxycodone, Fentanyl Citrate, Morphine, Methadone, Hydromorphone and Oxymorphone, according to many studies are becoming a scourge for the workers’ comp industry, as their use has increased dramatically in the workers’ comp system. The drugs account for a larger and larger portion of workers’ comp drug expenditures and studies have found that they are linked to delayed return to work, increasing costs and more litigation over claims.
In the case in question, JD Landscaping vs. Workers’ Compensation Appeal Board, James Hefferman injured his lower back in 2002 and five years later he was found unresponsive in his bed with a box of fentanyl patches in his hand. After analyzing the death, a pathologist wrote a report stating that Hefferman “died from drug intoxication due to an overdose of fentanyl prescribed for his work injury.”
Most recently, the Commonwealth Court of Pennsylvania upheld the findings of a workers’ compensation judge that Hefferman’s daughter was due workers’ comp death benefits after his overdose.
Why should you be alarmed as an employer, particularly if you have had an employee seriously injured? A number of studies have shown that the increased use of opioids in treating injured workers results in longer time away from work as well as increased likelihood of addiction, treatment for which would also be covered under the workers’ comp scheme. The Department of Health and Human Services Office of the Inspector General, states that:
“Schedule II drugs have a high potential for abuse, have an accepted medical use with severe restrictions, and may cause severe psychological or physical dependence if abused.”
And opioid or opioid combinations account for an increasingly larger proportion of drugs prescribed in the California workers’ comp system, according to studies conducted by the California Workers’ Compensation Institute.
In September 2009 CWCI released results of a study that found dramatic increases in the use of Schedule II drugs (over 95% of which were opioids or opioid combinations) between 2002 and the third quarter of 2008 – a trend that began to accelerate after 2005. That study revealed that Schedule II medications had grown from less than 1% of all California workers’ compensation prescriptions filled in 2005 to nearly 6% of the prescriptions filled during the first nine months of 2008, while the average amount paid for a Schedule II prescription had increased 64% to nearly $280 per prescription.
In an update to that analysis, published in 2010, CWCI researchers found that between 2005 and 2009, reimbursements for Schedule II drugs had increased from 3.8% to 23.6% of total prescription drug payments in the California workers’ compensation system.
In the case, after Heffernan injured his lower back on the job in 2002, his employer in 2006 filed a utilization review request in 2006. The doctor conducting the review concluded that all treatment provided to Heffernan by his treating physician — including prescriptions for docusate, fentanyl, oxycodone, Fentora, Lyrica and Sonata — was neither reasonable nor necessary, according to court records.
Based on that information, the employer denied Heffernan’s claim. After Heffernan was found unresponsive in bed with the fentanyl in 2007, Mr. Heffernan’s daughter filed a workers’ comp claim alleging that her father died of multiple drug intoxication and that she should be due death benefits.
In 2009, a workers’ comp judge granted her request for benefits, finding that the worker’s death was causally related to an accidental overdose of pain medications, primarily fentanyl, that were prescribed for the work-related back injury.
The employer appealed, arguing that the man died as a result of an accidental overdose of prescription pain medications found by a utilization review to be neither reasonable nor necessary.
Heffernan, though, had also received treatment from another doctor. The appeal board ruled the utilization review finding applied only to treatment rendered by one Dr. George Rodriguez. It also ruled that it was the medications prescribed by the other doctor that caused his death.
JD Landscaping appealed to the Commonwealth Court, arguing that the utilization review determination should also apply to the second doctor’s treatment because she wrote prescriptions identical to those issued by the treating physician.
The Commonwealth Court disagreed. It ruled unanimously that the utilization review determination concerned only reasonableness and necessity and was irrelevant in determining whether Mr. Heffernan’s death was causally related to his work injury.
With the results of this case in mind, you should note that a 2011 report by the Center for Disease Control and Prevention noted that in 2007, drug-induced deaths had become more common than alcohol-induced or firearm-related deaths in the United States, that the increase in drug abuse and related deaths was associated with “prescription opioid painkillers and psychotherapeutic drugs being prescribed more widely by physicians,” and that these drugs had “supplanted illicit drugs as the leading cause of drug-related overdose deaths.”
If other states follow the logic of this case, and considering the increased likelihood of overdosing or dying from a drug-related event like a vehicle crash, it could establish a new threshold for death benefits in workers’ comp that was never contemplated when the system was launched in the early 1900s.
What are your thoughts on opioids in the Workers Comp System? Let us know in the comment section!