Thursday, November 15, 2012

Drug Overdosing Becomes the Employer's Risk

While Washington is a monopolistic, state-run workers' compensation system, lessons applicable to the traditional private insurance systems of most other states are occasionally delivered.

And this time the lesson is that if industry doesn't step in and help resolve this nation's growing problem with prescription drugs, the courts will make them do so.

On Tuesday a divided Washington Court of Appeals panel ruled that the widow of a trucking company employee who died after ingesting six different prescription medications and alcohol was entitled to surviving spouse benefits as a matter of law.

In Department of Labor and Industries v. Shirley, No. 66994-0-I, Brian Shirley injured his low back while working for Wells Trucking and Leasing in 2004. He filed an application for benefits with the Department of Labor and Industries, and his claim was allowed.

The department closed Shirley’s claim in March 2005 with no award for permanent partial disability. Shirley objected, but was unsuccessful in challenging the department's action.

At the time his claim was closed, Shirley was taking only ibuprofen. Later Shirley's treating physician, Dr. Chester Jangala, said he had prescribed oxycodone, citalopram, alprazolam and amitriptyline to treat Shirley's back pain.

Two years later, Shirley's wife found him dead. He was 37 years old.

Shirley's wife testified that Shirley had a job, and that he had gone to work as normal on the day before his death. That evening, Shirley helped a neighbor chop wood and then came home and went to bed. He did not wake up the next morning.

The King County Medical Examiner performed an autopsy and listed the cause of death as an accident resulting from acute alcohol and drug intoxication.

A toxicology report indicated that Shirley's blood alcohol content was 0.07 grams per 100 mL, slightly lower than the state-presumed intoxication level of 0.08 grams per 100 mL. There were also traces of oxycodone, citalopram, desmethylcitalopram, alprazolam, Nortriptyline, amitriptyline, carbamazepine, Promethazine, and acetaminophen in his system.

Shirley's widow filed an application for survivor benefits under the Industrial Insurance Act after his death, but the department denied her claim.

The case went through several layers of hearings and appeals. During these proceedings, all of the medical experts who testified agreed that the cause of Shirley's death was the combination of alcohol, oxycodone, citalopram, alprazolam, amitriptyline, carbamazepine and acetaminophen.

They all said that none of the drug levels in Shirley's blood were highly elevated. Even though the levels of oxycodone and citalopram in Shirley's system during the autopsy were inconsistent with normal dosing, several doctors testified that the level was closer to a "therapeutic" level than a "toxic" level.

All of the doctors agreed that neither the drugs alone nor the alcohol alone would have killed Shirley, but the combination of drugs and alcohol suppressed Shirley's respiration and gag reflex, causing him to suffocate.

Even though Shirley's consumption of alcohol in conjunction with his medications was "not a wise decision," the court majority opined, this "did not amount to a supervening cause (of death)" since it was undisputed that neither the drugs nor alcohol alone would have killed him."

The court concluded that the evidence "clearly indicates that but for the prescription medications, prescribed specifically and directly for the effects of the industrial injury, Mr. Shirley would not have died" and so his widow was entitled to survivor benefits.

The dissent by Judge C. Kenneth Grosse argued that he "cannot accept as rational the conclusion that it was foreseeable that a back injury of this nature would inexorably result in the injured workman abusing the painkillers prescribed for his treatment while simultaneously abusing alcohol."

This Washington case puts the national problem of prescription drugs squarely into the hands of the workers' compensation industry. Sure, other state courts may differ in their interpretation of the law, but clearly a new risk is being foisted upon employers and their carriers.

The industry will react in two ways: 1) measure the risk and price it into new policy years; 2) engage in tactics designed to minimize the risk and increase safety.

We have seen numbers from various state filings in the past year or so reflecting an increased awareness of potential risks due to drug overdosing, so the pricing impact of this problem is starting to be factored into the economics of workers' compensation.

And we have started to see new carrier tactics, such as California's State Fund's requirement that physicians in their network agree to prescription contracts.

While the government may be able to regulate and educate, it's when the financial consequences are handed down to the ultimate consumer - employers - that meaningful and serious reform occurs. This Washington case reflects that reality.

1 comment:

  1. Every time I visit your blog, i find a fresh new post. Its really feel good to read your posts. And again this time another interesting post.
    Well, prescription drug deaths are definitely an issue, but for that "biggest man-made epidemic in the United States" title prescription drugs are still running behind obesity and diabetes.

    Thats true.
    Insurance Bad Faith Attorney