Opinion Mondays: Medical Care for Injured Workers is a Foursome

More than 20 years ago, I engaged in an “animated” discussion with a good friend who, while now retired, was then a prominent orthopedic surgeon in the area. Because of the nature of his practice, he often treated patients who had suffered work-related injuries. The conversation became animated when he told me that there was one thing about the workers’ compensation world that he particularly detested.

“The employers and carriers want to interfere with the doctor-patient relationship. They want to tell me how to practice medicine,” he almost shouted.

I retorted, “I disagree, No one is telling you how to practice medicine. They’re just telling you what they are willing to pay for.”

He didn’t like my response, but it points to an important matter that is sometimes overlooked in “our” world: When it comes to work-related injuries and occupational diseases, there aren’t just two parties to the healthcare relationship. It’s actually a foursome: the patient, the physician, the employer/carrier (which I treat as one), and another party, which is often forgotten or ignored — society as a whole. Let me explain, using a recent New York decision as my base.

New York’s Non-Acute Pain Medical Treatment Guidelines

In Matter of McKay v. Southampton Hosp, 2020 N.Y. App. Div. LEXIS 4096 (3d Dept. July 16, 2020), a New York appellate court held that the state’s Workers’ Compensation Board had the authority to promulgate its Non-Acute Pain Medical Treatment Guidelines (“NAPMTG”) which, when applied to the injured employee, meant he could be weaned from a long-term opioid prescription for back pain. The court held that the NAPMTG only expanded preexisting treatment guidelines that were within the Board’s power to issue — regardless of whether the “treatment” consisted of a medical procedure or medication.

Background

In 1994, claimant sought workers’ compensation benefits in a claim that was established for an occupational disease of the back. Subsequent decisions classified claimant with a permanent partial disability. Orders were entered that directed symptomatic treatment and pain management and authorized necessary medical treatment and care.

In May 2018, the employer and its carrier requested further action to consider whether claimant should be weaned from opioid medications after an independent medical examiner opined that such was appropriate under the NAPMTG. Following further proceedings in the case, a WCLJ granted the carrier’s request. The Board affirmed, and the claimant appealed, arguing in relevant part that the Board exceeded its authority in promulgating the regulations incorporating the NAPMTG.

Appellate Court Decision

The appellate court initially noted that, as with any administrative regulations, those of the Board would be upheld as long as they had a rational basis and were not unreasonable, arbitrary, capricious or contrary to the statute under which they were promulgated. The court observed that the process that led to the NAPMTG actually began in 2007, with a legislative directive that the Board “issue and maintain a list of pre-authorized procedures … for the purpose of expediting authorization of treatment of injured workers” [see N.Y. Workers’ Comp. Law § 13-a[5]]. The Board responded by promulgating medical treatment guidelines that not only set forth those procedures, but went further to create a procedure for medical treatment providers to request authorization for treatment at variance with them.

Example: Acupuncture Treatments

For example (and this issue was not present in the instant case), New York’s Medical Treatment Guidelines provide that with regard to the treatment of neck injuries, the optimum duration of acupuncture treatments is one month, and the maximum duration is 10 treatments. To the extent that the acupuncturist desires to provide additional treatment (and be paid for it by the employer/carrier), he or she must seek a variance to the Guidelines. It isn’t so much that the State of New York (or the employer/carrier) is telling the acupuncturist how to treat the patient; it’s merely that no one is going to write a blank check for treatment.

Medical Treatment Guidelines Went Beyond Statute’s Original Directive

Back to McKay case and the issue related to weaning McKay from opioids, the appellate court also observed that New York’s medical treatment guidelines actually went beyond the directive of N.Y. Workers’ Comp. Law § 13-a[5], yet the state’s high court determined that the Board properly exercised its broad regulatory power in adopting them, since the aims of the Workers’ Compensation Law were furthered by a variance procedure that avoided delay and uncertainty in providing medical care to injured workers [see Matter of Kigin v. State of N.Y. Workers’ Comp. Bd., 24 N.Y.3d 459, 24 N.E.3d 1064, 999 N.Y.S.2d 800 (2014)].

NAPMTG Added in 2014

The court continued that the NAPMTG were added in 2014 and that they only expanded preexisting treatment guidelines that were within the Board’s power to issue. In sum, the Board was empowered to issue the NAPMTG and, in the court’s view, there was nothing irrational in its decision to do so. Accordingly, the Board’s decision to direct that the injured worker be weaned from opioids was affirmed.

Commentary: Is 26 Years of Opioid Treatment Enough?

Moving back to my original argument — that with regard to healthcare issues related to injured workers, what we have is a foursome — the issue becomes whether or not medical decisions are to be made solely by the patient in consultation with the physician, or whether the employer/carrier and society should have a say as well. We must recall that the goal in providing medical care to injured workers is two-fold. To be sure, one goal is to deliver effective care to treat the injury and its effects. Yet there is another goal that is sometimes forgotten: medical treatment is also provided in order to get the worker back to work. Indeed, as harsh as this can sound, many of the original state workers’ compensation acts did not provide for medical care that was merely palliative [see Larson’s Workers’ Compensation Law § 94.04]. There are a host of old decisions in which courts have held diathermy to relieve pain, in a case of no hope of improvement or cure, could not be awarded under a state’s definition of “medical benefits.

Is it fair, therefore, for an employer (and/or society) to say that an injured worker should be weaned from opioids after 26 years? Multiple studies point to the fact that tapering long-term opioid therapy in a chronic, non cancer pain scenario is beneficial, not harmful to an injured worker. The New York guidelines do not forbid long-term opioid treatment for pain. What they do is place the burden on the patient and physician to show that such long-term use is actually required and that some other, non-opioid treatment is inadequate.