Thursday, November 17, 2011

CA WCAB Case Highlights Promotion of Needless Disability and Drug Pushing

A California Workers' Compensation Appeals Board (WCAB) Panel Opinion that clearly demonstrates the perversity of opioids in workers' compensation was reported this morning in WorkCompCentral and is illustrative of how the system promotes needless disability.

The case of Vilma Tentnowski v. Perotti & Carrade (SCIF) revolves around the question of whether the parties have enough evidence to decipher how the applicant's daily use of prescription painkillers is affecting her ability to work.

Two Agreed Medical Examiners (AMEs) provided the expert witness reporting on the case: Dr. Mark Shelub and Dr. Stephen S. Schneider.

Shelub, an orthopedist, recommended restrictions that led to an 86% permanent disability (PD) rating from the Disability Evaluation Unit (DEU). Schneider, a psychiatrist, diagnosed a 39% psychiatric disability. After apportionment, the workers' compensation judge concluded that Tentnowski had a 95% permanent partial disability rating.

Tentnowski challenged her PD rating and other issues. In the opinion the WCAB pointed out that Shelub's 2009 medical report describing the applicant's work restrictions did not state how Tentnowski's prescriptions affected her work restrictions. Yet, in a December 2008 report, Shelub opined that Tentnowski's high dosages of Oxycontin would bar her from working a 40-hour week.

The WCAB panel noted that Tentnowski's physicians have since increased her prescriptions to 32 milligrams of Exalgo (hydromorphone) a day, and Dilaudid every two hours!

What would Tentnowski's disability be if she weren't addicted to opioids? And why do her treating physicians permit Tentnowski to be on such high dosages of opioids for so long, and even increasing dosage? Why does the workers' compensation judge and WCAB buy into this needless disability?

And after Tentnowski's case settles or she gets her reward (no typo - this case clearly is one of rewarding the disability rather than the capability), will she continue with her "drug therapy?" Or will the employer/carrier then be required to provide detoxification services? If Tentnowski detoxes, will that lower the permanent disability rating?

At least the dissent in the panel opinion, by Commissioner Deidra Lowe, demonstrates some understanding of the perversity of this case.

Lowe's dissent stated that she disagreed that the medical record required further development, because Shelub's reports indicated that he had accounted for the amount of Oxycontin Tentnowski was regularly using at the time of the reports. Lowe also highlighted the fact that Schneider had also documented the applicant's prescription medications.

"Since Dr. Schneider's Feb. 2, 2010, report took into account all of applicant's medications, and since this is the report the workers' compensation judge relied upon to determine psychiatric disability, there is no need for further development of the medical record regarding applicant's medication usage," Lowe wrote. "In summary, Dr. Schneider did not state that the effects of applicant's medications are disabling, but he did note that when applicant took the battery of psychological tests, she never manifested concentration, attention or comprehension problems."

This case is troubling is so many respects.workers compensation, work comp, injured worker 

1 comment:

  1. You are right on target Dave. This case reflects the needless disabling that results from system design and misaligned incentives. We recognize the severity of the issue of opioids in the claims arena, however it does not appear that too few physicians recognize how they creating needless disability by poor (or biased) judgment (or lack thereof) in assigning labels and providing medications or other treatment that is not supported by evidence-based medicine - rather contributes to the disabling. Shame on any stakeholder who creates needless disability - the costs, particularly the human costs to the injured worker, are severe. Some suggestions. All participants need to be aware of the current science and factors that contribute to needless disabling.

    Two references that I highly recommend: 1) the text "AMA Guides to the Evaluation of Work Ability and Return to Work" and the article by Bob Barth, PhD on "Prescription Narcotics: An Obstacle to Maximum Medical Improvement" that appeared in the March / April 2011 Guides Newsletter. As the Editor of that AMA publication, I stated in Editors’ Commentary
    "Pain evaluation, management, and impairment assessment are all controversial topics. The overuse of narcotic (opioid) therapy is epidemic and while it is agreed that routine use of narcotics is not recommended, there are different perspectives on whether they have a role for very select patients. This article provides excellent insights to the controversies and the problems associated with the use of narcotics, and articulates why it is medically probable that a patient taking narcotic prescriptions is not at maximal medical improvement."

    Recommend involvement of medical consultants knowledgeable about these issues and do not rely upon panel QME or AMEs that in our experience are often of poor quality and would not meet standards of "substantial evidence."