Delaware Employer Need Not Pay for Claimant’s Opioids More than 9 Years After Accident

The Delaware Supreme Court affirmed a decision of the Superior Court that in turn had affirmed a decision by the state’s Industrial Accident Board (“IAB”) granting an employer’s petition for review as well as the IAB’s findings g that the claimant’s ongoing narcotic pain medications were no longer compensable [Sheppard v. Allen Family Foods, 2022 Del. LEXIS 187 (June 23, 2022)]. The IAB’s June 2020 decision, based upon the medical opinion of a board-certified physical medicine, rehabilitation, and pain management physician, was that claimant’s need for opioids was no longer casually connected to an industrial accident that had occurred more than nine years earlier. The Supreme Court said the employer’s evidence—which included the fact that the claimant had failed to advise physicians of her illegal marijuana use—was sufficient to withstand the claimant’s motion to dismiss before the Superior Court.

Background

In April 2011, Sheppard slipped and fell on the employer’s cafeteria floor, sustaining injuries to her neck, low back, left arm, and left leg. She sought medical treatment from various providers and was prescribed both opiate and non-opiate medications for pain. Later, she sought and, in July 2014, was awarded permanent impairment for 10 percent to the cervical spine and 7 percent to the right upper extremity.

In 2016, the employer requested review of Sheppard’s ongoing health care treatment and service for medications prescribed by Dr. Eva Dickinson. After two unsuccessful attempts at contacting Dr. Dickinson, the utilization reviewer determined that certain opioid medications prescribed by the doctor were not compliant with the Delaware HCPS practice guidelines. Sheppard appealed the reviewer’s decision to the IAB, which issued a notice to Dr. Dickinson of a scheduled hearing. According to the court, the doctor did not appear.

On August 1, 2017, the IAB affirmed the decision of the utilization reviewer and found that Dr. Dickinson failed to substantiate the reasonableness and necessity of her treatment related to Sheppard. As a result of the decision, the employer and its carrier had no further liability to Dr. Dickinson or her medical practice for those medical expenses that had been the subject of the UR decision.

Additional Hearing: Possible Marijuana Use

On December 2, 2019, the employer petitioned to terminate the compensability of Sheppard’s narcotic medications and injection treatment pursuant to 19 Del. C. § 2347. The employer argued that Sheppard’s narcotic pain medications were unreasonable, unnecessary, and unrelated to the industrial accident. At the subsequent hearing, the employer presented one witness by deposition, Dr. Jason Brokaw, a board-certified physical medicine, rehabilitation, and pain management doctor, and a certified provider under the Delaware Workers’ Compensation system.

Dr. Brokaw reviewed Sheppard’s medical records and examined Sheppard on three separate occasions: January 5, 2017, September 4, 2019, and February 27, 2020. Evidence indicated that during the September 4, 2019 examination, Dr. Brokaw asked Sheppard about marijuana use, which she denied. Dr. Brokaw later indicated that the majority of Sheppard’s urine drug screen tests had been positive for marijuana from 2011 through 2019.

Recommendation Gradual Withdrawal of Medication

Based on Sheppard’s physical examination and Dr. Brokaw’s review of her record at the 2019 visit, Dr. Brokaw made the following assessments:

• There was a disproportionate description of pain relative to the nature of Sheppard’s accident,
• Sheppard had ongoing high dose opiate medications, and
• Sheppard was noncompliant because she had not told the truth about her marijuana use to Dr. Brokaw or the treating providers.

Accordingly, Dr. Brokaw recommended a complete detoxification from any abusable medications include opiates, benzodiazepines, Soma, and marijuana. In order to avoid abrupt withdrawal, he recommended reducing Sheppard’s medications over the course of three months, and then continuing treatment with non-opioid medication management and occasional rounds of physical therapy.

Sheppard Admits Marijuana Use

At the February 27, 2020 examination, Sheppard reported to Dr. Brokaw that she continued to receive her medications, but that she was no longer receiving treatment from her doctor there. Instead, Sheppard reported that she was receiving treatment from the nurse practitioner. Sheppard’s medications at that time included oxycodone, cyclobenzaprine, and ibuprofen. During this examination, Sheppard admitted to Dr. Brokaw that she used marijuana without a medical marijuana card, but that she was in the process of applying for a card. According to Dr. Brokaw, Sheppard told her treatment providers that she already had a prescription card for medical marijuana, but the providers never confirmed that assertion.

Dr. Brokaw acknowledged that medical marijuana was useful in certain circumstances, it was inappropriate for Sheppard, in the doctor’s medical opinion. He further indicated that he could not causally relate a need for ongoing treatment related to Sheppard’s April 2011 industrial injury. The doctor added that Sheppard’s objective findings did not correlate to her subjective symptoms.

Nurse Practitioner

Sheppard presented one witness by deposition, Patricia Grady, CRNP, the nurse practitioner who treated Sheppard. Grady had more than 19 years experience as a nurse practitioner and was licensed in Maryland and Delaware. Grady was also a certified provider under the Delaware Workers’ Compensation system. Grady disagreed with Brokaw’s assessment that Sheppard was uncooperative. She also disagreed with Brokaw’s opinion that Sheppard should be weaned from opioids.

IAB: Employer Met its Burden

The IAB accepted Dr. Brokaw’s opinion over that of the nurse practitioner, noting that Brokaw’s were more persuasive as they were consistent with the facts of this case and Sheppard’s condition. Further, the IAB noted that nurse practitioner Grady was unaware of Sheppard’s illegal use of marijuana for many years which negatively impacted Grady’s testimony. The IAB noted that Grady had either ignored what was listed on the urine drug screen reports and turned a blind eye to that fact or she had been misled by Sheppard into believing Sheppard had a valid medical marijuana card. The IAB also found that Sheppard was not credible because she initially denied using marijuana when asked by Dr. Brokaw. Accordingly, the IAB concluded that the use of narcotics had not led to an improvement in her condition, and, therefore, it agreed with Dr. Brokaw’s conclusion that Sheppard should be weaned off the narcotics. Sheppard appealed to the Superior Court, which affirmed. She then appealed to the state Supreme Court.

Delaware Supreme Court

Initially, the Court noted that when the Delaware Board awards compensation, it is not an adjudication as to the claimant’s future condition and does not preclude subsequent awards or subsequent modifications of the original award. The force of Dr. Brokaw’s opinion was not to challenge retroactively the treatment or benefits received by Sheppard. Rather, the doctor was giving his opinion regarding Sheppard’s current objective findings and her subjective symptoms; the employer was not re-litigating the original liability issue.

Utilization review was appropriate where causation was not at issue, such as in the present case. UR could be sought in order to evaluate the quality, reasonableness, and necessity of proposed or provided healthcare services for acknowledged compensable claims.

Dr. Brokaw testified as a medical expert and disputed the causal relationship of Sheppard’s ongoing treatment to her Accident, and he did so after reviewing her available records and personally examining her. The IAB, as the factfinder, determined that Dr. Brokaw’s conclusions were more credible than NP Grady’s, and that Sheppard was incredible. The Employer had new evidence of Sheppard’s dishonesty with her doctors. For example, she lied about her illegal use of marijuana. She began receiving her treatment from a nurse practitioner only, and not a medical doctor, and the nurse practitioner was unaware of Sheppard’s illegal use of marijuana. The Court said that these facts, noted by the Board and the Superior Court, sufficed to satisfy the good faith obligation sufficient to withstand Sheppard’s motion to dismiss. Reversal of the Superior Court was not warranted.