June 4, 2015
Next Tsunami of Work Comp Payments
by Mark Pew
Work comp payments may expand greatly because of a California decision awarding death benefits related to a drug overdose.
2009 was a milestone in workers’ comp. In that year, the Centers for Medicare and Medicaid Services (CMS) formally announced that it would review future prescription drug treatment in Workers’ Compensation Medicare Set-Aside (WCMSA) proposals based on “appropriate medical treatment as defined by the treating physician.” While the U.S. culture and Centers for Disease Control and Prevention (CDC) had already noticed the prescription drug epidemic, this new requirement more clearly highlighted high-cost drug regimens that were doing more clinical harm than good.
Yes, the monthly drug costs were already known to be expensive. Yes, reserves often had to be raised annually. But until the workers’ comp industry had to follow explicit rules to calculate the lifetime cost associated with continued inappropriate polypharmacy regimens, the problems hadn’t really registered.
The new requirement dramatically changed the ability to settle and close a claim, so addressing the overuse and misuse of prescription drugs, primarily related to non-malignant chronic pain, became a white hot priority. The financial exposure highlighted by the WCMSA was a tsunami that changed the contours of the claims shoreline.
Well, another milestone has been achieved for workers’ comp. I have been talking about it, as well, over the past three years, because I could see the riptide indicators of the next tsunami to hit. And now the surge is about to hit the shore.
This next workers’ comp tsunami? Death benefits that will be paid because of drug overdoses.
This has already been affirmed in a handful of states, among them Pennsylvania (James Heffernan), Tennessee (Charles Kilburn) and Washington (Brian Shirley). Death benefits have been denied in other states, including Connecticut (Anthony Sapko) and Ohio (John Parker). I’m sure this is not a complete list. The list shows how individual circumstances and jurisdictional rules can drive different decisions, but what is not up for debate is whether payers face an issue concerning injured workers dying from an overdose (intentional or unintentional) of prescription drugs paid for by workers’ comp.
The game-changer could be a new decision in California, South Coast Framing v. WCAB. The full Supreme Court decision can be found here, and a good article that gives additional context can be found on WorkCompCentral (requires a subscription).
To summarize, Brandon Clark died on July 20, 2009. The autopsy reported his death “is best attributed to the combined toxic effects of the four sedating drugs detected in his blood with associated early pneumonia.” Elavil, Neurontin and Vicodin were being prescribed by his workers’ comp physician, while Xanax and Ambien were prescribed by his personal doctor. Of that list, the four sedating drugs are Elavil, Vicodin, Xanax and Ambien — obviously a mixture of workers’ comp and “personal” drugs.
The qualified medical evaluator (QME) doctor ascribed the overdose to the additive effect of Xanax and Ambien and not the workers’ comp drugs. However, he allowed that Elavil and Vicodin could have contributed (the deposition quotes on pages three and four remind me of a Monty Python skit, as he tried inartfully to not provide apportionment). So … what is the strength of causality between the industrial injury and death? Tort is much more precise in its understanding — cause, in fact, and proximate cause. Workers’ comp (which is no-fault) is not tort, and neither is its definition of causality — contributing cause of the injury.
Did Clark misuse or overuse the drugs through willful misconduct? Possibly. Should one of his physicians have recognized the additive sedative effects from the combination of drugs and done something different? Probably. Was Clark trying to address continued legitimate pain that originated with his workplace injury? Likely. Is this a tragedy? Definitely.
So the decision came down to whether the workers’ comp drugs (Elavil and Vicodin) could have been part of why Clark died.
The Court of Appeal concluded that Elavil only “played a role” and was not a “significant” or “material factor.” The Supreme Court found the evidence to be substantial that Elavil and Vicodin, to some degree, contributed to his death. Therefore, they awarded death benefits to Clark’s wife and three children.
What does this mean? At least in California, it means that the bar of establishing causality (did workers’ comp drugs somehow contribute) is not as high as you might have expected. There is no further debate because this is a Supreme Court decision. Does that mean more death benefits are to come in California? In a highly litigious state where representation is commonplace. And prescription drug use for chronic pain is an overwhelming problem. Hmmm …. My “magic eight ball” is in for maintenance, but my educated guess (I am not an attorney) would be yes.
What about other states? Well, every state has different rules and case history, but because trends often start in California, and the Supreme Court was articulate in its decision-making process, it’s possible this causes a re-examination by all parties. The fact that some states already have established case law to grant death benefits could be a compounding effect. Therefore, it’s a definite maybe.
This may be an isolated case that has no repercussions in California or elsewhere. On the other hand … Consider this your RED FLAG warning for the riptide that precedes the tsunami. And you thought paying for drugs was expensive!