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The State of Opioids in America

It has become increasingly difficult to overlook the growing national conversation concerning the use of opioid drugs and the dire effects they have had on not only average people, but the American economy as a whole. The CDC estimates more than 115 Americans die each day due to opioid overdoses, and that the economic cost of opioid abuse amounts to $78.5 billion a year when considering the burdens placed on healthcare providers, rehabilitation programs, the criminal justice system, and users being absent from the workforce.

Many are surprised to learn that the use of opioid medications to treat non-terminal pain is a relatively new concept in medicine and is largely unique to the American medical system. U.S. opioid prescriptions took off in the 1990’s after a series of campaigns by opioid manufacturers assured the medical community that opioid drugs posed a low risk of addiction. Over the last decade, however, the highly addictive characteristics of opioids became widely understood and accepted in the medical community. Unfortunately, the damage has already been done. In 2015, approximately 33,000 Americans died from opioid overdoses; in 2016, that number grew to 42,000. As a result, American healthcare professionals, policymakers, and insurance companies have been striving to better spot the signs of addiction and reduce opioid drug use and prescriptions.

In keeping with the national trend towards opioid abuse prevention, the Wisconsin worker’s compensation system and insurers have responded to opioid use and disputes in new ways. Injured workers who have been using prescription opioids to treat chronic pain may experience pushback from worker’s compensation insurers who previously paid for those medications without objection. In addition, worker’s compensation administrative law judges and the appeals tribunal, known as the Labor & Industry Review Commission (“LIRC”), have carefully decided cases with an eye towards spotting addiction and endorsing alternative treatments.

WI Worker’s Compensation System Responds to Opioid Disputes

In 2018, LIRC decided two worker’s compensation cases that may foretell how disputes over opioid use will be addressed going forward.

In Luksic v. Joy Global Surface Mining, Inc., a worker’s compensation insurer challenged whether the expenses related to the applicant’s long-term use of opioid medications were “reasonably necessary” to treat chronic pain related to a work injury many years prior. LIRC found that the expenses related to the opioid medications were indeed reasonably necessary and ordered the insurer to reimburse the applicant because (1) the opioid medications eased his pain, and (2) the applicant exhibited no signs of addiction or abuse. The insurance company hired their own doctors who agreed that the applicant showed no signs of addiction or abuse, but further opined that the long-term use of opioids provide no actual relief of the causes of the pain, lowered quality of life, and could lead to addiction down the road. Instead of ordering the insurer to pay for all future opioid prescriptions, LIRC ordered the applicant’s doctor and the insurance company doctors to communicate with each other pursuant to Wis. Admin. Code § DWD 80.73 to privately resolve the necessity of the need for future opioid use.

In Luksic, LIRC also commented on the national conversation surrounding opioids and its relation to worker’s compensation, noting that “[i]t is common knowledge that opioids have been widely over-prescribed” and “[t]here seems to be a general consensus in the medical community that after a certain length of time the risks of prescribing opioids outweigh the benefits.”

A few months after Luksic, LIRC handed down another decision in Zuiker v. Cub Foods, which involved a dispute regarding the overprescribing of opioid medications. In Zuiker, the applicant was prescribed large doses of opioid medications for over two decades by her treating doctor. Over the course of several years, the worker’s compensation insurer had attempted to wean the applicant off of opioids by sending her to pain rehabilitation programs, which positively increased her physical functioning resulting in a decreased need to take opioids. However, each time after leaving these programs the applicant’s physical state quickly deteriorated largely due to non-compliance with her physical activity requirements, resulting in her needing to go back on higher doses of her opioid medications.

When the case reached LIRC, they agreed with the insurance company’s denial of future opioid medication payments because the medical evidence established that the applicant’s condition improved during the physical rehabilitation programs and declined when she stopped her physical therapy programs and only took opioids. LIRC also found the applicant was overprescribed opioids and concluded that she would benefit from a weaning program.

Once again, LIRC made it clear that they were “well aware of the current governmental and media attention focused on the long-term use and abuse of opioid medication, as well as the fact that a large number of serious worker’s compensation injuries have resulted in long-term use of some level of opioid medication.” They concluded by noting that they will analyze each of these opioids disputes on a case by case basis through reviewing the “particular facts and circumstances applicable to each individual’s case.”

The Future of Opioid Use for Injured Workers and Other Considerations

LIRC’s opinions in Luksic and Zuiker may be bellwethers of the Wisconsin worker’s compensation system’s future approach to cases involving opioid use. For injured workers and insurance companies, there are several clear takeaways outlined in these opinions.

  1. If an injured worker is found to have displayed signs of opioid addiction or abuse, an administrative law judge will likely endorse a weaning program consistent with the national trend towards decreasing opioid use and prescriptions. On the contrary, if an injured worker has sufficient medical support from his or her treating physician to continue using opioids and exhibits no clear signs of addiction or abuse, then continued opioid use may be approved.

 

  1. If a worker’s compensation insurer denies payment for opioid medications after the failure of an alternative pain treatment program (e.g. pain rehabilitation or physical therapy), the injured worker and his or her treating doctor will need to demonstrate at a hearing that they made good faith efforts at trying other pain relief methods without success and that opioid medications are the most effective and safe medical treatment for pain related to the worker’s injury.

 

  1. Should a worker’s compensation insurer wish to pursue denying payment of an injured worker’s opioid medications, they will need to provide an alternative treatment plan. In addition, the insurer will have to prove the alternative treatment plan is more effective than the opioid medications. In relation to containing costs, however, some insurers may end up thinking twice about alternative treatment programs because they could very well end up costing them more down the line than simply continuing to pay for opioid prescriptions. This is especially so considering the high costs of medical treatments such as surgeries, pain rehabilitation programs, or advanced medical equipment like a spinal stimulator.

Contact Hawks Quindel

As our national conversation on the opioid crisis grow, injured workers who have been using opioids for many years may be required to try alternative treatments and/or wean off their current dosages. It is in the interest of both workers and worker’s compensation insurers to make good faith efforts towards alternative treatments and weaning programs if ordered.

If you are an injured Wisconsin worker who has been directed by a worker’s compensation insurer to begin an alternative treatment program and/or to decrease your opioid medication dosage, contact Hawks Quindel’s experienced worker’s compensation attorneys for a free evaluation of your claim.

Brandon Jubelirer

Worker's Compensation Attorney at Hawks Quindel, S.C.
Attorney Brandon Jubelirer represents injured workers in a variety of worker’s compensation matters. Having spent his legal education and work experiences focusing on employment-related issues from the perspective of employees, Attorney Jubelirer fully appreciates the challenges Wisconsin’s workers face while navigating the legal system.