Take a Proactive Approach to Reduce Opioid Liability Risk
Workers’ comp payers are increasingly on the hook for problems related to opioids prescribed for injured workers, according to a new report. The National Safety Council examined several recent cases and issued a warning and suggestions for employers and insurers to take steps to protect injured workers and themselves.
“Recent court decisions have determined that in certain circumstances, overdoses suffered by injured workers from opioid pain medications prescribed for occupational injuries are compensable by the workers’ compensation insurer,” the report noted. “Employers and their workers’ compensation insurance carrier have been ordered to pay for detoxification and medical-assisted treatment services as well as death benefits to surviving family.”
The NSC cited more than two dozen cases from state appellate or state Supreme Court decisions between January 2008 and March 31, 2015. “These cases demonstrate that it is not a regional issue but a national problem meriting employer and workers’ compensation program action,” the report said. “The courts relied on several key legal concepts.”
Proximate cause, for example, is identified as “any legally recognizable set of facts which, in natural or probable sequence, produced the individual’s injury.” If a worker slipped on spilled water at work and sustained an injury, the spilled water is the proximate cause of the injury.
The “chain of causation” determines whether any injury after the original is related to the workplace injury. Sometimes a separate action by the injured worker can be considered an independent intervening act, or superseding cause. In such a case, the intervening act breaks the chain of causation and ends the liability for the workplace injury.
“For the cases reviewed in this paper, the chain of causation is clear,” the report said. “A workplace injury occurred. The injured worker received treatment that included prescription pain medications and subsequently died of an opioid-related prescription drug overdose. The legal question at the center of all these cases is whether an intervening action broke the chain of causation to the workplace injury.”
States differ in their workers’ comp laws and rules of evidence. Nevertheless, in the majority of cases noted in the report overdose deaths of injured workers may be compensable “even when the medication is not taken as prescribed, taken with alcohol or inappropriately prescribed.”
Employers and insurers are advised to reduce their risks and potential compensable costs related to the use of opioid pain medications in workers’ comp claims by:
- Requiring workers’ compensation and network providers to use opioid prescribing guidelines issued by the American College of Occupational and Environmental Medicine. These include guidelines on opioid prescribing thresholds and recommend precautions for the prescribing provider. Among the precautions are undertaking thorough patient histories with a more detailed screening if the treatment is to continue beyond two weeks, urine drug monitoring, checking the state prescription monitoring database, avoiding co-prescribing benzodiazepines with opioids, and discontinuing treatment when patients have reached meaningful functional recovery.
- Using caution and requiring prior approval for the use of methadone to treat chronic noncancer pain.
- Screening injured workers for depression, mental health conditions, and current or prior substance use.
- Requiring all pharmaceuticals be purchased and managed by a pharmacy benefit manager.
- Educating all workers about the hazards associated with prescription pain medication use. “Many workers do not understand the unique risks and dangers posed by opioid pain medications,” the report said.