In May, WorkCompCentral reported Court Reinstates Denial of PTD Award for Worker With Opioid Addiction. In Borkovec v. Dish Network, Case No. 17-0743 (Iowa Ct. App., May 2016), the issue of opioid dependence is aptly illustrated.
The worker in this instance was injured in 2009 when a “drunk driver crossed the center line and hit (his) vehicle head-on.” The Court noted there were “significant work-related injuries,” and another person died in the collision. The injuries required multiple surgeries, “intensive therapy, and continuing treatment for pain.” His recovery concluded at maximum medical improvement (MMI) and a 34% permanent partial impairment was imposed. At that time, “some addiction issues with opioid medication” were noted.
In 2014, the treating doctor mentioned that “chronic opioid use can create a hyperalgesic effect.” This is an “overly sensitive” reaction “to pain otherwise reduced by the use of opioids.” A year earlier, another physician had noted “slow speech and thought processes along with impaired judgment and insight.” That doctor had “recommended a comprehensive pain management program,” but the injured worker was rejected by multiple programs. A third doctor opined that the injured worker, in 2014, was “not at MMI for his opioid addiction.”
This third doctor recommended “in the strongest terms,” that the injured worker “be taken off of these medications if at all possible.” A deputy workers’ compensation commissioner concluded that the worker was “permanently and totally disabled (PTD) and an odd-lot worker based on his physical injuries,” but that he “had not achieved MMI for his mental conditions or his opioid addiction.” The Workers Compensation Commissioner affirmed the conclusions of causation of the worker’s injuries, but because the worker was not MMI for the opioid addiction, she reversed the award of PTD. She concluded that treatment of the “opioid addiction . . . would likely significantly improve his functional capacity.”
The matter proceeded to the district court, which disagreed. It concluded that “treatment of (his) opioid addiction would not significantly increase his physical functioning and ability to return to work” The court reinstated the award of PTD benefits, and the employer appealed.
The appellate court explained its standards of review. A recent post Abuse of Discretion mentioned how these standards are applied by appellate courts. When acting within their appropriate scope, appellate courts follow these standards strictly. The Iowa Court noted it was bound by the trial judge and Commissioner’s factual findings. and provided a lucid and clear explanation of the “substantial evidence” review standard. The Court dissected the various medical opinions regarding the injured workers’ capabilities and physical restrictions. Some of those were clearly related to the physical injuries for which he had reached MMI.
However, the Court did not agree with the worker’s claims that his physical injuries are so disabling that his opioid addiction is irrelevant or superfluous. Of note, “at least two medical experts have indicated that additional treatment for [opioid] dependency should result in improved functional capacity and significant improvement.” The Court noted that some of the worker’s activity restrictions were directly related to “significant narcotic medications” that are part of his treatment regimen.
The Appellate Court concluded that the “Commissioner’s findings of fact were based on substantial evidence,” and were therefore appropriately affirmed. It reversed the district court and reinstated the Commissioner’s decision that the conclusion of PTD was premature in light of the ongoing opioid use and issues.
The decision was not unanimous. Judge Danilson concurred in the outcome, but wrote a concurring opinion to express concern. Judge Danilson feared that the injured worker would either be unsuccessful with overcoming addiction, or would remain significantly impaired even if addiction were overcome. The Judge noted that after “a good faith effort to overcome” addiction, the “healing period should end,” and at that time the overall impairment and entitlement to benefits should be determined. Judge Danilson cautioned that the worker “should not be held hostage endlessly on some slight glimmer of hope he may be employable with very substantial work restrictions in the future.”
The points are worthy of consideration. Should a worker be labelled as “permanently disabled,” before reaching maximum medical improvement for all conditions? Should the severity of the conditions for which MMI has been reached contribute to answering that question? In other words, if a condition that has reached MMI is itself totally debilitating, should ongoing remedial care for some ancillary concern preclude rating and compensation? Does the analysis suggest any caution in regards to the provision of, the amount of, opioids in workers’ compensation injuries? When a treatment regimen starts down the opioid path, what future implications does that hold?
The casual reader, from just what is set forth above, will see that there are complexities in workers’ compensation. The work injury can be influenced by the condition and health of the worker that exists at the time of injury (pre-existing conditions) and by things that occur after (complications). And, those are worthy of thought and discussion. The medical complications of opioids are clear from this Iowa example, but as a potential complication, medication is perhaps one among many?
Another implication worthy of note, is that the use of medications, application of modalities, and treatments are used by Medicare to predict future care needs. When determining the likely cost of future medical care at the time of settlement, the cost of past treatment can be used to project probable future expense. Thus, the prescription of opioids, benzodiazepines, or other long-term medications may complicate or even frustrate the potential for settlement in states that allow settlement of future medical care (which implicates Medicare).
The prescription of medication is thus a broader set of considerations that are worthy of consideration. The payer in the equation has motivation to monitor the use of prescription medication, to consider alternative modalities and efforts. There are potential downsides to prescription medication. They include costs of addiction, withdrawal, and settlement. But, more importantly, there is human cost to addiction. Payers would do well to ask what is in the best interest of the injured worker, holistically, medically, and vocationally. Decisions about how to heal should include consideration of whether today’s modality (opioids) creates tomorrow’s complication (addiction). And, the focus should remain on the human being that is being treated.
Overprescription alone may not be at the root of today’s American overdose and death, but The Atlantic and others suggest that it played a significant role. Opioids are killing Americans. Some are prescribed and others from the street. They involve risk, of a hyperalgesic effect, addiction, disability, and even death. The potential downsides, today and tomorrow, should be considered by all involved when treatment is planned and executed. It is possible that in some instances the cure may become as significant a problem to a particular human being as the injury itself.
ABOUT THE AUTHOR
David Langham is the Florida Deputy Chief Judge of Compensation Claims. He blogs weekly regarding system issues, regulations and decisions. He has published many articles and delivered more than 1,000 professional speeches.