In the workers’ compensation world, the Board has acknowledged opioid addiction as “a major public health crisis” that “deeply affects” New York’s injured workers. So it comes as no surprise that in that same announcement, the Board re-asserted its opinion that long-term opioid use is rarely recommended and should be done in restricted circumstances with much oversight.
While some claimants’ counsels like to argue that opioid use is not an issue that should be decided upon by a judge and some judge’s may shy away from making these hard decisions, the Board has given carrier’s the right to question and litigate on this issue — and we should be aggressively litigating on this issue. This not only benefits the carrier from a significant cost perspective, as opioids are very expensive, but, in the long-run, it’s beneficial for the claimant, due to the high risk of opioid addiction.
The Board has provided guidance on how to wean claimants off opioid medications. First, the carrier must obtain a medical opinion on whether the medications are appropriate. The opinion must comment on a weaning plan. Any medical opinion must provide specific comments regarding claimant’s pain, general medical condition, psychosocial history, psychiatric status and substance use history. The doctor should directly address several issues: 1) whether the potential benefits of continuing an opioid program outweigh potential harm; 2) whether the doctor prescribing the opioids is continuing to monitor the effect of the treatment; 3) whether claimant is at the baseline in regards to function and pain. The doctor should also comment on whether the prescribing doctor continues to regularly re-assess/re-evaluate claimant’s medical status and whether the prescribing doctor recommends transitioning when appropriate. Once we obtain strong supporting medical evidence, carriers should file the RFA-2.
The Board then directs carriers to file RFA-2 marking the box “k”, a modification of the RFA-2 which includes a box labeled “Opioid Weaning under Non-Acute Pain Guidelines.” The Board will then send a letter (EC-88) to the treating provider who has 45 days to comment on the medications. The claimant should have the prescribing doctor comment on the following: 1) the provider’s review of the use of opioid medications, 2) list of current medications prescribed to the claimant; and 3) a review regarding whether the opioid prescriptions are in compliance with the Non-Acute Pain Medical Treatment Guidelines. This report must be produced by the first hearing. Significantly, the Board is holding the claimant and his treating provider responsible for meeting this deadline and if they fail to do so, the claimant could face automatic weaning.
Once at a hearing, the Board may review the provided medical opinions and decide the following: (1) weaning is appropriate because there is insufficient proof of the need for continuing long-term opioid use and the judge might also determine that claimant should be enrolled in an addiction treatment program; (2) medical evidence proves that claimant should continue long-term opioid use as its use is effective with improved function and pain reduction; (3) direct litigation on the issue. Please keep in mind that long-term opioid use may be found appropriate in limited circumstances. By the Board’s own rules, long term opioid use is not prohibited but rather the prescription of opioid medications should be tied to sufficient evidence of functional objective improvement. The Board’s own guidelines indicate that long term opioid use is rarely effective and carriers should continuously evaluate their file to determine whether a claimants’ medication regime is actually benefiting the claimant.