According to Gov. Tom Wolf’s prescribing guidelines for Pennsylvania, the commonwealth’s rate of injured workers who become long-term opioid users is among the highest in the nation.
Considering the guidelines indicate that over 170,000 workers’ compensation claims were made in Pennsylvania in 2017 alone, this is a cause for concern for both injured workers and employers.
The detriment to a claimant’s life is evident based upon the impact of opioid dependency. From an employer’s perspective, long-term opioid use nearly certainly equates to a high exposure claim with costly medical expenses, sometimes totaling thousands per month. Further, as a secondary effect of opioid dependency, a long-term opioid-using injured worker will very likely create significant indemnity exposure, based upon the difficulties of returning such an individual to the workplace.
Over the past year, the Pennsylvania legislature presented numerous bills aimed to introduce a drug formulary to the workers’ compensation system. Such a drug formulary would have dictated the prescription of medications within the context of workers’ compensation claims by using evidence-based criteria. To this end, opioid prescriptions would have to adhere to specifications set forth by the drug formulary. These specifications would be based upon diagnoses, allowing physicians to only prescribe medications deemed appropriate for the diagnosed condition. Following the diagnosis-based scheme, medications would have precise dosages and durations for prescriptions considered to be reasonable and necessary.
When applying the drug formulary to opioids, the goal would be to avoid prescriptions when opioids would not be considered an appropriate treatment. For example, a minor injury, such as a sprain or strain, would require an alternative pain management protocol or less potent opioid-based medications for a very limited period of time. By virtue of the drug formulary, situations in which a patient would be exposed to high-potency opioids at the onset of treatment, presenting a risk for long term-dependency, would be reduced.
While such bills aimed to institute a drug formulary ventured through the commonwealth’s legislature, they have not been signed into law. Rather, the governor, via executive order, issued guidelines titled Safe Prescribing for Workers’ Compensation.
Similar to the drug formulary-based system, the guidelines aim to limit the prescription of opioids for work-related injuries. The guidelines provide recommendations to use non-opioid pain management, such as acetaminophen and/or NSAIDs with muscle relaxants, like cyclobenzaprine, baclofen, and tizanidine. The guidelines also discuss the use of additional treatments aimed to address pain, like physical therapy, rest and mindful meditation.
The guidelines stress that opioids, when prescribed, should only be used in the lowest effective dose for the shortest duration possible. Addressing treatment of chronic pain, the guidelines discourage long-term use of opioids, directing medical providers to various forms of therapy and non-opioid medications.
While the overlap between the drug formulary and guidelines is evident, it is important to note the guidelines are only recommendations. As such, the guidelines do not offer any impact on Pennsylvania’s workers’ compensation law, as would a drug formulary dictating the types of prescriptions considered “reasonable and necessary.”
Nevertheless, as before the guidelines and the introduction of drug formulary legislation, the utilization review process is still available to the parties involved in a workers’ compensation claim. The utilization review process allows any party, in many instances employers, to seek a review of specified treatment by filing a request. The request includes precise treatment of a specific provider to be reviewed by an independent medical provider within the same specialty. The reviewer issues a report, called a utilization review determination, discussing each portion of treatment and whether such treatment is reasonable and necessary.
If either party is displeased with the utilization review determination, a hearing can be requested, and the matter is assigned to a workers’ compensation judge. The judge then hears evidence presented by the parties, namely medical expert testimony and/or reports, and decides whether the treatment of the specific medical provider at issue is reasonably necessary.
While there may be disagreement as to the exact method of curbing opioid prescriptions in the workers’ compensation context, whether it is by drug formulary or simply guidelines, an understanding would seem to exist that opioid use should be avoided and minimized in situations when deemed necessary. Consequently, the opioid epidemic has resulted in elevated medical provider, claimant, and employer awareness of the dangers and negative outcomes associated with opioid use.
Lucas Csovelak is an associate attorney in the Harrisburg office of law firm Weber Gallagher. He defends employers, insurance companies and third-party administrators in workers’ compensation matters. He can be reached at [email protected].