Comp Should Sue Purdue

Over the past weekend the Los Angeles Times published a startling investigative story on Purdue Pharma, the maker of Oxycontin, and everything they knew about illegal distribution of the drug, their investigations, their suspicions ... and the company's complete lack of communication with anyone that could put a stop to the company's $31 billion revenue stream from the nation's best selling opioid.

How much did Purdue know?

And how much did they keep to themselves ... until pressured by law enforcement and the government?

According to the story, since 1999 more than 194,000 people have died from opioid overdoses, and more than 4,000 per day become addicted.

Four thousand a day...

Yet, even after three of Purdue's executives pleaded guilty to federal charges of misbranding Oxycontin and the company paid $635 million in fines and fees, the company turned a blind eye to clinics they knew were overprescribing, and even fronting criminal enterprises, all after touting increased security and controls over their drugs.

One year after the settlement, a Los Angeles pain clinic, Lake Medical, opened its doors on the license of Dr. Eleanor Santiago, a physician who had fallen on hard times and whom the operators of Lake Medical recruited to write prescriptions.

Santiago wrote 1,500 prescriptions for the pills in a single week - more than most pharmacies sell in an entire month; and according to the story, in October of 2008 she prescribed more than 11,000 pills.

Purdue investigated and concluded Lake Medical was part of a criminal enterprise working with a pharmacy in Huntington Park.

“Shouldn’t the DEA be contacted about this?” the sales manager, Michele Ringler, told company officials in a 2009 email, according to the story. She opined certainty it was an organized drug ring.

Still, Purdue didn't take any action against Lake Medical, and didn't tell anyone about what they knew until the clinic went out of business and its leaders indicted.

According to the LA Times, Purdue had collected exhaustive evidence suggesting criminal distribution of the drug, and not only did not share that information with law enforcement, but kept selling the drug to those being investigated.

"Purdue knew about many suspicious doctors and pharmacies from prescribing records, pharmacy orders, field reports from sales representatives and, in some instances, its own surveillance operations, according to court and law enforcement records, which include internal Purdue documents, and interviews with current and former employees," the Times says.

Since 2002 Purdue had been keeping a list of suspicious doctors, and the Times investigation revealed there were 1,800 names on that list.

Only 8% of them were reported to law enforcement.

Rather than risk its interfering with the obscene profits Oxycontin was delivering by releasing its information, Purdue instead came out with a tamper-resistant formulation. It was only after many arrests had been made that Purdue supplied its "suspicious" list to the DEA - by that time it was old news; many on the list had already been arrested.

The Times investigation and the resulting story are hugely incriminating. Big business making big money off of ... big business, when put into the context of the workers' compensation system.

The issues with opioids in workers' compensation are well known, the accounts well documented.

The harm to lives, families, business is huge.

The financial damage to workers' compensation payers is monumental, especially when tallying up the costs of unnecessary disability indemnity, drug rehab, lost production, medical bills, etc.

Suffice to say, the industry has probably supported, to its detriment, Purdue to the tune of billions of dollars, directly and indirectly.

Many states have sued and settled with Purdue, but those suits were based on the company's labeling misrepresentation.

Actively concealing damaging information for the sake of profits against the workers' compensation industry is another matter, however. (To be clear, there isn't evidence that workers' compensation was targeted, but certainly work comp was a huge victim.)

It seems to me, that the workers' compensation insurance industry (and self-insured employers along with them) have some leverage in the form of a class action lawsuit to recoup much of the damage Purdue caused by its fraudulent activity.

And it IS fraud! Knowingly concealing information that causes harm and damage to others is just as bad as misrepresentation.

Jack Crowley, who held the title of executive director of Controlled Substances Act compliance at Purdue and had spent decades at the DEA, told the Times, “Well, once we start to learn about it, we’ve got to report it. That’s for sure.”

Purdue didn't.

Pretty much a slam dunk to my jaundiced work comp "no fault" legal mind.

If any carrier wants a referral for a class action law firm, contact me...

The Opiate Shaker

When my wife and I were in Kentucky last month for the Derby, we took a day out to visit Pleasant Hill and the Shaker Village.

Over 3,000 acres with 105 years of history are contained in 34 surviving structures, many of them hosting exhibits.

One exhibit was about the history of William F. Pennebaker, who ultimately was designated a medical doctor after being sent to Cincinatti, OH to get training so the village could have its own medical servicing.

Pennebaker was known to be quite a character, but was also hailed as one of the more learned and read men in the village.

On display was a representation of an actual clinical note regarding a great new medication Pennebaker, and his mentor, S. Tripp, M.D. Pleasant Hill, Ky. that was published in the Bayer's Pharmaceutical Products catalog of the time (1902) on benefits in the prescription of heroin:

"Although a new remedy, Heroin has been found to possess so many valuable properties that it has been much more thoroughly investigated than many older preparations. The point of special interest in regard to this drug is its remarkable action upon the respirator tract. While it reduces the number of respirations, its action here is not that of a depressant, since it increases the volume of inspiration and the force of expiration. ... On the other hand, the power of Heroin to allay irritation of the nerves of the air passages has rendered it a favorite remedy for the relief of cough. ... Compared with other narcotic remedies, and especially morphine, Heroin has proved remarkably free from after-effects. Some instances of unpleasant sequelae have been reported, but they have been of a mild degree, and attributable in many instances to excessive dosage."
...
"In administering Heroin, also, care should be taken not to give it in combination with alkaline drugs, such as bicarbonate of sodium, as it is state that these are liable to decompose it in time and render it inefficient."
...
"The opportunity to test the merits of this new remedy presented itself recently, as it was prescribed in our own family by a consulting physician. The limited use of Heroin since has given results so marvelously beyond our expectations that it seems proper to add our commendations to the growing endorsement of this morphine derivative."

What was known then about opiates by the physician population isn't much less than now, at least according to the sessions in the National Rx Drug Abuse & Heroin Summit that was held in Atlanta, GA earlier this year.

At The Summit, one of the presenters said, matter of frankly, that "what we have found is that many of these people end up just opting out of life..."

Claim administrators in the Third Party Payer track said they were seeing a 30% use of opiates in their claims compared to 4% in the general health population - but remember that general health is a much larger population than work comp, and the story I was hearing was that many come through the general health gateway because physicians simply aren't well trained on opiates.

There was case study after case study about intervention in claims - some of the patients were resistant, but more shockingly, more of the resistance came from the medical community itself, mostly because of the fear of taking long term opiate use away and the potential for adverse effects.

The sinister part of opiates is that people don't realize the fog they live in. The effects take hold subtly, discretely, until the patient believes that the drugs are necessary despite the adverse consequences of altered thought and personality.

Dependency masks itself as fear.

One presenter, a chief pharmacist for a claims administrator, toured California to talk to doctors.

Her mission was to go visit the physicians and show them how bad opiates are, and how errant prescriptions could put patients at greater risk of adverse health consequences. Some took the advice, he said, and didn't realize what they were doing until shown the data.

Others screamed at her and kicked her out of the office.

And there were some that were obvious pill mills with cameras everywhere and the physicians didn't care.

Her take away - no one was holding the medical community accountable.

We have seen some of this change as some doctors have been sent to jail for injudicious prescription of opiates. Others are fighting indictments and civil complaints.

Accountability is starting to permeate the medical community with the help of law enforcement.

The claims community is opening up too, seeing alternative treatments, drug rehabilitation and limited psychological services, as pathways out of the opiate liability stream that was opened up in the first place because dosages, that produce the "after-effects" and "unpleasant sequelae," were not well monitored.

In time, the "opiate crisis" in work comp will abate.

And likely be replaced by some new concern...

114 years of accumulated knowledge, and we still have much to learn.

People Don't Change

Psychological issues are more prevalent in workers' compensation claims than in the general health population studies show.

Yet workers' compensation claims management traditionally does the least to address them, typically for fear of opening the proverbial Pandora's Box.

A 2002 study published in the Journal of Occupational and Environmental Medicine found 37.7% of injured workers had a pre-existing psych condition categorized as “Axis I,” (on the three Axis scale as published in the Diagnostics and Statistics Manual IV by the American Psychiatric Association) which includes conditions such as anxiety, depression and substance abuse, but not personality disorders. In comparison, 15.4% of the general population had one of those conditions.

For injured workers with psychological conditions before their injury, 10.2% had pre-existing major depression, 9.2% had an anxiety disorder and 24.9% had any substance disorder, including 15.9% with alcohol dependence and 13.5% with drug dependence, according to the study.

After the injury, the rate of major depression found in the study increased to 48.5%. The rate of alcohol dependence dropped to 1.3%, but the rate of opioid dependence grew to 13.8%, compared to 1.6% pre-injury (which makes sense now as we understand the path to opiates within the treatment context of pain complaints).

The JOEM study looked at 1,595 injured workers with chronic musculoskeletal pain who had been out of work for at least four months, and had begun a rehab program in Dallas.

Stalled in the Colorado state legislature is House Bill 1399, by Rep. Jonathan Singer, D-Longmont, that would prohibit denying a claim for mental impairment benefits based solely on the occupation of the worker.

The bill would have also required injured workers who file a psychological stress claim to undergo an examination by an accredited physician BEFORE the claim could be denied.

Daniel Bruns, a psychologist in Greeley, CO, told WorkCompCentral in a phone interview that the state's treatment guidelines recommendation of a psych evaluation for all patients with chronic pain or delayed recovery, before more radical treatments such as surgery, has reduced costs in those claims categories.

“In workers’ comp there’s been this fear that it would drive up costs,” Bruns told WorkCompCentral. “In Colorado, it lowered costs.”

There's a movement afoot in work comp claims to treat "the whole body" and this trend is facilitated by billing codes that permit such treatment without implicating wholesale acceptance of a person's entire psychological dysfunction.

Psych issues are more pronounced in workers' compensation than the general health population because of the disruptive nature of a work injury and the way the system responds. It makes sense to provide services intended to mitigate psych impact.

Certainly, work comp as currently configured, can not address all of a person's psychology. The system isn't designed for such intervention, and I suspect doing so would meet quite a bit of resistance not only from payers, but from the injured workers themselves who may be adverse to opening up their lives to possible exposure to others.

Still, I'm guided by the old saying, "people don't change; their personalities just become more acute."

Studies and anecdotes show that claims payers and their subject who recognize that maxim, in general, have more positive results.

But it takes both, the willing payer and the willing subject, to make addressing psych issues in the work comp context ... work.

Alternative to Drugs

While a lot of emphasis at the National Rx Drug Abuse & Heroin Summit in Atlanta, GA, this week was bringing awareness to the scope of the opioid epidemic and the cost in lives and money, there were several sessions that touched on alternatives to drugs, how difficult it is to exercise those alternatives, and how awareness needs to be brought to those alternatives - to doctors, payers, and recovery candidates.

Becky Curtis, founder of Take Courage Coaching™ and WorkCompCentral's Magna Comp Laude award winner for 2015, has written an open letter to help explain one alternative - pain coaching.

Here's her letter - feel free to copy, paste, distribute or cite to anyone that is of influence or trying to deal with opiate recovery:

**********

Chronic pain has become a very costly and controversial subject these days. The Centers for Disease Control’s recommendation states, “The guideline is intended to ensure that clinicians and patients consider safer and more effective treatment, improve patient outcomes such as reduced pain and improved function…”

After a devastating accident left me partially paralyzed and with burning nerve pain from the neck down, I studied everything I could find on the brain and pain. I trained as a health and wellness coach, then developed Take Courage Coaching™, a telephonic pain-management coaching program for those suffering with chronic pain.

Since 2008, Take Courage Coaching™ (TCC) has been a pioneer in designing, implementing, evaluating, and researching the most effective methodologies for coaching individuals, who live with chronic pain, to learn a self-management approach to their pain. This does not intend to exclude the use of opioids or other medications, but we have consistently found when individuals learn evidence-based strategies to manage their pain, they are able to retake control and live life again. 

In the last 7 years, we have helped 75% of our clients replace opioids with other modalities. The result has been a 54% return to work, increase in vitality and mobility, and reduction in fear avoidance and negative affect.

While speaking to a group of providers at a national pain conference, I shared the following quote: “There is no evidence chronic opioid therapy benefits most people… Unfortunately, opioids remain the de facto treatment for most workers with chronic pain.” [1] When I ask physicians in my audience why this is, their responses are consistent: “it’s easy,” “it’s paid for,” and “it’s what is expected.” 

Pain-management coaching is not easy, it is not paid for and it is not what is expected. But it works. So I am diligently striving to see that it is easily accessible to people with pain, it is paid for, and it is what is expected when people ask for solutions to chronic pain.

Most clients with complicated pain have already tried the “easy,” passive route. Most of us have had numerous surgeries, tried countless medications and a myriad of procedures. Once pain lingers, if we are going to have any success, we will need to put away the expectation that someone else will cure us, and actively engage in simple evidence-based modalities. 

At Take Courage Coaching™, we assess each client with the Non-VA Pain Outcome Questionnaire (POQ) when they start, at 6 months and one year. We have discovered it takes time for neuroplastic change [2] to occur. This is not the fast, easy route, but the changes are measurable and lasting. After measuring data for several years, we have found the best time-frame for coaching a client is one year.

Pain-management coaching is not paid for—yet. Because we have seen statistical significance in our results (in all 8 areas of the Pain Outcomes Questionnaire), this is disappointing. We are only able to be paid by Workers’ Compensation, and we have piloted the program in one VA pain clinic in Oklahoma with significant results. But many of those who really need tools to taper off opioids and get back to life are not able to afford the service out of pocket. Insurers cover doctor visits, ER visits, and medication for chronic pain, but not coaching that provides the patient with a lifetime of tools for self-managing pain—a service that costs less than the average annual direct healthcare costs for an individual with chronic pain. [3]

Pain-management coaching is not what is expected. We expect a pill, a surgery, a procedure to cure us. But what if, instead, providers were educated on this available tool?

As Dr. Sean Mackey testified before the U.S. Senate this month [4], one of his patients—a 73-year-old woman who suffers nerve pain and needs to take one opioid in morning and one at night to sleep—told him: “Please don’t let them take away the medication that’s helping me to function without giving me something else.” Pain-management coaching is that “something else.” Our clients often tell us, “I now have the tools I need to manage my pain. I’m ready to taper off my opioids and get back to my life.”

Let me tell you a story about a veteran who had been bedridden for years due to pain. He was isolated with little human interaction, subsisting on Twinkies, Mountain Dew and opioids 3x per day. Because TCC is a telephonic program, he was able to consistently attend his two coaching appointments each week without leaving his home. 

His coach asked him, “Are you willing to be released from the prison pain has put you in?” He was ready! He had a breakthrough when he realized he had the support and tools he needed to accomplish his goals. They just had to be small enough to not overwhelm him. After working with his coach for 7 months, he made the decision to start tapering off his opioids. He reported his pain was less using his pain management tools than it had been while on opioids. 

His focus is outward now instead of inward. He didn't think he could go on without opioids; he didn't think it was possible. This Veteran is making more plans for living life and is seeking to do more of the things he loves and has missed because of chronic pain. He continues to increase his exercise routine and states he is stronger and enjoying life. He credits accountability for his moving forward—having a coach for support and motivation.

Thank you for taking the time to read this letter. I would love to have a conversation with you about how we can make pain-management coaching a standard of care for everyone who is in chronic pain and particularly those attempting opioid recovery.

Sincerely,

Rebecca Curtis, PCC

Take Courage Coaching™

footnotes:

1 Howe CQ, Sullivan MD. The Missing ‘P’ in Pain Management: Now the Current Opioid Epidemic Highlights the Need for Psychiatric Services in Chronic Pain Care. Gen Hosp Psychiatry. 2014 Jan-Feb; 36(1)99-104.

2 “Neuroplastic change” means actual structural changes to the brain when a repetitive process is re-learned. See Michael H. Moskowitz, MD & Marla DePolo Golden, DO. Neuroplastic Transformation: Your Brain on Pain. Neuroplastic Partners, LLC. 2013.

3 http://www.ncbi.nlm.nih.gov/pmc/articles/PMC4094572/ (2014).

4 See more at: http://scopeblog.stanford.edu/2016/02/29/opioid-abuse-among-seniors-stanford-pain-expert-testifies-on-issue-before-u-s-senate/#sthash.eVtxk7U5.dpuf

Murthy's Law

At the National Rx Drug Abuse & Heroin Summit being held in Atlanta, GA, the nation's relatively new Surgeon General, Vice Admiral Vivek Murthy, made some poignant observations about the nation's issues with opioids, and of course observations that bleed into workers' compensation.

Murthy first observed that, like many issues in work comp itself, the public health problem that is prescription drug addiction arrived here with good intentions, but went astray because, for the most part, we as a society, as professionals, as consumers, didn't really understand what we were getting into.

Now, of course, there are more than 2 million Americans becoming addicted to prescriptive opioids every year and when those folks are denied their opiates they turn to the black market, eventually driving heroin use, and worse.

Surgeon General Vivek Murthy

Murthy said that over 250 million prescriptions are issued for opioids every single year - nearly enough for every single individual in America. But the overall level of pain reported by Americans has not changed.

There are five key components that need addressing, Murthy said:

1) Change the prescribing practices of health professionals to ensure they are treating safely and effectively;

2) Increase access to Buprenorphine, an opiate uptake inhibitor that helps with the detox process;

3) Ensure that medication is combined with counseling services and that the combination is available to all with addiction profiles;

4) Expand public education so people understand the risks of opiates and how to properly manage them; and

5) Change how this country sees addiction to remove the stigma - it is a disease says Murthy (and many of the folks here) not unlike any other disease such as diabetes.

The workers' compensation institution helped create this opioid issue two ways: by denying or strictly limiting access to conservative care (physical therapy, chiropractic treatment, acupuncture, etc.) and failing to account for the "whole person" in providing medical care.

The only remedy left for physicians, then, became pills. More pills. Stronger pills. Get that patient out of the office quickly because he or she is costing valuable practice time, ergo, billings.

Certainly the constriction of conservative care wasn't without good intention. Abuses were rampant. Certain chiropractors, physical therapists and other conservative care providers determined that unrestricted care meant a constant, recurring revenue stream well beyond any beneficial care plateau. 

That abusive, selfish mentality made some people mad. Mad enough that laws and regulations were implemented to constrain the abusers, which of course punished the vast majority that had no intention of abuse, and the spiral down to a national crisis began.

So now we're left with trying to correct a problem of our own making, and Murthy's steps 1 and 3 can be directly affected by this industry: changing prescribing habits requires education and resources (i.e. use common sense in managing care rather than wholesale constrictions), and treating the whole person (yes, that means psychological care and treating the comorbidities along with the industrial diagnosis).

There were two very important philosophical points that Murthy made, though, that if we hold them close to our professional commitment, will not only increase the dialogue about drugs, but also about the efficacy of workers' compensation as the work injury protection program it is intended to be.

One - Murthy wants the country to know that addiction is not a moral failure, and in this regard WE should tell the country that workers' compensation itself is not a moral failure. If we look at work comp in the manner for which it was intended - not a line of insurance but as a mode of social obligation - this changes how we look at it, and how others look at it (so make your Comp Laude nomination now!).

Two - It is a fundamental American value that we are responsible for each other.

We forget that the children of our workers are our children too - that those people are our people. There is no economy without our people, and the children of our people. One need only look at areas that have been particularly hard hit by the opioid epidemic, such as rural Kentucky, to realize that the social burden from ignoring the problem is far greater than the cost of the remedy.

We are responsible for each other.

How often do we forget that?

Old Dog, Old Tricks

What goes around comes around.

TENS, or transcutaneous electrical nerve stimulation, has been around as long as I can recall.

It fell out of favor because there wasn't any valid scientific affirmation that it was effective in reducing pain, and of course, the practice was abused, so the value of the technique was discounted both medically, and remuneratively.

The substitute, like many other conservative pain management techniques, was pills.

Of course, now we have an opioid "crisis" partly of our own making.

Now, coming full circle, we have physicians touting chiropractic as a reasonable pain management tactic, albeit within guideline specifications.

And TENS is also being promoted as another tool in the pain arsenal that can provide some relief.

Healthesystems, a workers’ compensation cost-management company, published results from an anecdotal study indicating that one in four opioid patients can get off the drugs and manage their pain using TENS.

Bowzer's back pain...

The Healthesystems article suggests that TENS is better for "active" pain as opposed to "resting" pain - i.e. the technique is more useful where pain is experienced in movement, as in doing a job.

The American College of Occupational and Environmental Medicine treatment guidelines recommend against TENS as a treatment for acute pain, but say it may be useful as an adjunct treatment for some types of chronic pain.

Similarly, the Official Disability Guidelines from Work Loss Data Institute allow a TENS trial for some types of chronic pain, such as low back pain.

“In general, there’s not a lot of evidence to support TENS,” WLDI President Phil Denniston told WorkCompCentral, acknowledging that it does work for some patients.

And Denniston said anything that can help get patients off of opioid drugs, such as TENS or yoga, is worth considering.

There you go: the more things change, the more things stay the same (and all of the other trite phrases that express similar sentiments).

In other words, what we have learned, is what we already knew: treatments that are palliative, or even just placebos, are less expensive, and less harmful, than managing the penalty of addiction to opiates.

Or, as Bowzer would counsel, you can't teach an old dog new tricks, but you can build upon the foundation.

Chiropractic Cure to Opioids?

An interesting comment was made by James Rainville, MD, at the 17th Annual AAOS Workers' Compensation and Musculoskeletal Injuries course in Boston, MA this past weekend.

But first a little about Dr. Rainville.

Dr. Rainville is a University of Massachusetts Medical School trained physician with a boat load of publications and scientific studies to his name. He's an Assistant Clinical Professor at Harvard Medical School, is Chief of Physical Medicine and Rehabilitation at New England Baptist Hospital, is a member of several professional organizations including the North American Spine Society, American Academy of Physical Medicine and Rehabilitation, and the Physiatric Association of Spine, Sports and Orthopedic Rehab, pecializes in medical management of spine conditions, disorders and injuries and medical musculoskeletal management.

In other words, he really knows his stuff about back and neck pain.

And what he said made me think that our own laws have been a major contributing factor to the dramatic increase in opioid abuse along with the attendant disabilities, deaths and other human horrors that these awful, addictive, destructive drugs wrought on individuals, and ultimately society.

We blame the drug companies for overt pushing because these drugs are big profit.

We blame unethical and immoral physicians seeking greedy new revenue streams.

We blame "crack head" addicts for getting out of control, and then supporting their habits by circling the pharmacy planet so they can make a few bucks on the black market.

We seek to address the problem by creating more complex rules, drug formularies, pharmacy benefit management programs, throwing docs in jail for murder and other circuitous ways of dealing with the problem.

But the opioid "problem" didn't just occur over night. It was brewing for some time, and a big part of the "problem" was the making, I believe, of our own doing ... by legislation.

Dr. Rainville pointed out in his lecture that physicians, when confronted with a case of generalized back or neck pain, should prescribe chiropractic; it is better for the patient that chiropractic be dispensed than opioids, because chiropractors can not (at least yet) make prescriptions.

But chiropractic treatment has come under artificial limitations.

California, in response to abusive chiropractic practices, in 2004 limited by statute the quantity of chiropractic and physical medicine to 24 visits.

I don't know the actual numbers, and I'm not sure anyone has really done a study - but I certainly don't remember opioids being an issue before the artificial chiropractic limitation.

They certainly were afterwards, and it took only a few years for that trend to develop into a hockey stick graph.

A presentation by Joseph Barr, MD, presented some cursory statistics that would tend to support this theory - Oxycontin was introduce to the market around 1996. Rapid increase in the prescription and consumption of that drug started occurring in the early 2000s, about the same time that abusive chiropractic practices were coming under scrutiny.
Could it be that the legislature's good intentions at curbing some small element of the system in fact helped create a much bigger, more sinister problem?

Other states also restricted chiropractic in workers' compensation around that same era.

It may be coincidental, or it may not. I don't have that answer - but there is an interesting correlation nonetheless.

Now we have guidelines, lots of them, that didn't exist in 1996, or weren't well known or adopted by workers' compensation. All of them make evidence based recommendations on the number of chiropractic and physical medicine treatments.

While the claims payer may limit treatment per some guideline, the nice thing about guidelines is that they are only guides ... and can be rebutted by facts or other evidence.

Laws can't be changed, and may be relied upon by payers for short term cost containment to the detriment of long term claim expense and ultimately a destroyed human life. But guidelines don't have to be followed (although in practice I'm afraid these too are all too often relied upon as hard "ceilings" on treatment).

Sure, you don't want some chiropractor providing treatment three days per week for years. There are other sensible ways of corralling incorrigible chiropractors other than hard limits.

Shutting down care absolutely, though, doesn't seem to have been the answer.

Accepting the New Paradigm

This is guest post by Becky Curtis.

Becky was severely injured in an industrial, single person, motor vehicle accident. Her injuries resulted in signifiant disabilities and chronic pain. She attempted all of the usual pain management modalities for a few years. Nothing seemed to work.

Eventually she learned how to channel the pain away, and she learned how to teach those techniques to others, founding the Take Courage Coaching clinic.

This is a success story:

*****************

Mike* is a former construction worker who was injured doing search and rescue work.  Despite several corrective surgeries, he has suffered with chronic pain for 8 years, limited mobility, anxiety and depression, diabetes and high blood pressure. 

Pain the entire length of his body—the severest involving his leg—made it difficult to walk, climb, and carry things.  He could no longer work.  Furthermore, he had abandoned a healthy social life in order to hide his depression from friends.  He was no longer doing woodworking or fishing and camping—activities he had been passionate about.  He was referred to TCC by his disability insurance case worker for pain-management coaching.

During Mike’s initial assessment, he rated his pain at 7 out of 10.  His total POQ was 122 (out of 190), reflecting impairments to Activities of Daily Living (70%), Fear and Avoidance (45%), Mobility (65%), and Vitality (67%).

With help from his coach Mike dug deep to envision his life not dominated by pain.  He imagined being able to do the things he enjoyed—fishing, camping, woodworking, family outings, and getting restful sleep.  In the end, he wanted to know his life contributed to his family and community.

Once a week Mike met with his coach and participated in a group call with others living with pain—a facilitated session that combines education and pain-management strategies with community support. 

Mike had never had someone to lean on. His fear of talking about the pain and depression was gradually replaced by a small glimmer of hope.   

Within two months he was exercising, sleeping better, and reconnecting with friends.  Conversations with his coach were less about pain and more about what he wanted to accomplish.  

By six months, Mike had cleaned up his shop, become a city councilman, and taken his wife camping.  He reported feeling much less pain and depression.  His POQ came in at 68 (compared to 122 at intake).

Mike continued to increase his activity levels—traveling, camping and fishing, getting a part-time summer job, and volunteering.  Instead of dead ends, he was seeing possibilities, even with his physical limitations.  

Upon completion of the program, Mike no longer needed pain medication, he was working a part-time job and fulfilling his duties as Councilman, and his POQ was down to 46 from a starting score of 122.  With his self-management program, Mike continues to live with reduced pain and increased vitality as he explores the possibility of starting a home-based business.  

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What is important in the Mike's story is not only about beating the burden of daily pain, but his realization that life is going to move on, but now his role is changed.

It's not just the pain associated with an industrial accident (or any life altering injury and disability) but it's the adjustment to a new order in life - THAT's a critical part of the "outcomes" equation that we all too often miss and/or ignore.

People like Becky Curtis, Dwight Johnson, and of course Mike above, all came to the realization after dealing with chronic pain and disability that life has changed for them. The same routines don't apply any longer. There's a new life paradigm.

The key is accepting the new paradigm, and having the courage to move on to that new path and direction.

It's not easy.

If you know someone who has mustered the courage to face their new life's paradigm, or someone who has been instrumental in helping an injured worker find their place, please nominate them for a Comp Laude award (https://www.workcompcentral.com/gala-voting). Nominations close August 31.

Simply Complex

California workers' compensation claims stay open longer, much longer, than the national average and as a consequence cost a whole lot more when compared to other states, and according to the Workers' Compensation Insurance Rating Bureau much of this has to do with when medical treatment is paid for.

Only 39% of ultimate accident year medical payments in California are made within the first 36 months of an injury, compared to a national average of 67%.

As a consequence, California employers pay more for workers' compensation insurance than any other state no matter what study is used to compare statistics.

The WCIRB analyzed 1 million claims and $4.4 billion in medical benefit payments. The claims were divided into categories based on the interval between the date of the accident and the date of medical service.

Of the claims reviewed, 84% had medical services provided within the first three years following the accident. These claims accounted for 66% of total medical payments reviewed.

About 12% of claims had medical services being provided between three to 10 years from the date of injury, accounting for $970 million, or 22% of payments reviewed. And while only 4% of claims were still getting medical services between 10 and 30 years after an injury, payments for these claims totaled $559 million, or 13% of costs.

Greg Johnson, director of medical analytics for the WCIRB, said in a WCIRB Research Forum webinar yesterday that claims start to develop similar patterns the longer they stay open: Prescriptions for narcotic painkillers and psychoactive drugs increase for workers still receiving medical care three years following an injury.

Prescription drugs account for 10% of payments made for services provided up to three years following an accident. That number increases to 27% of payments services provided three to 10 years following an injury and 37.2% of payments 10 to 30 years after the accident.

Johnson noted that the amount spent on drugs is about 4% to 5% higher than the amount paid to pharmacies for each cohort, and that physician dispensing is the culprit, and that the longer a claim stays open the more likely narcotic prescriptions become involved.

Johnson couldn't say whether there was a cause and effect in the relationship, only that we know there is a relationship.

In addition, three years after an injury payments for services such as physical therapy and chiropractic care drop off considerably, which makes sense given California's hard cap and reimbursement restrictions on those service codes.

Physical medicine accounts for 11.1% of payments for services up to three years following an injury, 4.2% of payments for services provided three to 10 years after an injury and 2.2% of payments 10 to 30 years after an injury.

Of course those conditions evolve from acute to chronic in nature, further complicating the treatment picture.

"This shows me we've got an aging population," Johnson said. "If you look at the health care statistics in the population, these chronic problems obviously develop with other people, and the comp system is paying for many medical problems of aging. The acute injuries are related to the original injury, but the individuals here evolve in terms of the primary diagnosis to more chronic problems over time."

I'm sure there's all sorts of other explanations as well, and everyone can point a finger at someone else for this phenomenon.

All that doesn't matter. Everyone's to blame and no one does anything about it.

The fact of the matter is that behavior of everyone in the system is a product of the laws and regulations that establish the boundaries. Those boundaries drive incentives. Incentives drive behavior. Behavior drives costs.

I wrote on Tuesday about trust. There is very little trust in workers' compensation. There's even less trust in California.

That's why we have artificial limitations on physical medicine services - because there was a group of providers who couldn't be trusted.

That's why we have fee schedules for copy and interpreting services - because there was a group of vendors who couldn't be trusted.

That's why there's a claims audit process and a penalty system - because there was a group of claims payers who couldn't be trusted.

That's why there's payroll audit and employer premises inspections - because there was a group of employers who couldn't be trusted.

That's why there's sub rosa investigation and prying into the private lives of injured workers - because there was a group of employees who couldn't be trusted.

With each level of mistrust there's greater gesticulation by the conductor, and all of us react in amplified manners to the point where the entire "orchestra" is flailing and creating the comedy that gets ridiculed and despised.

If you look at the top performers in the self-insured/administered category you don't find these statistical anomalies, and claims get closed faster, employees return to work and have less disabilities - because the employers trust their providers and their employees, and the providers trust the employers and the employees, and the employees trust their employers and providers.

It's a complex trusting relationship that takes a lot of work to establish and maintain and frankly it comes down to money.

The friction in the system is money. But the lubrication in the system is also money. There's a fine line between the two. That distinction is understood by those top performers and they use those incentives to drive their claims cultures.

Those with good experiences look at the moon, not at the finger pointing at the moon. They pay for good results up front, not for bad results at the end.

It's really quite simple, yet unnervingly complex.

Drugs, Formularies, Concepts

Will California become the fifth state in the nation to adopt a prescription drug formulary for workers’ compensation?

By all accounts, it certainly seems so.

There is hardly ever a proposed legal change to California's workers' compensation system that doesn't draw out divisive, contentious battle ground lines between various interest groups, but the adoption of a drug formulary has parties that are normally fighting each other embracing the concept.

Assembly Bill 1124 (Perea, D-Fresno) drew support from representatives of employers, insurers and the medical cost containment industry during an Assembly Insurance Committee hearing yesterday. Representatives of health care providers, labor and applicants’ attorneys all expressed conceptual support but called for amendments.

Texas, Washington, Oklahoma and Ohio have already adopted formularies. The purposes are two-fold: reduce the cost of prescriptions, and expedite drug access.

Ken Eichler, a spokesman for Work Loss Data Institute, told the committee according to WorkCompCentral's account this morning, “It basically creates two buckets: a bucket of drugs which could be pre-approved for expedited authorization and a second bucket, not a bucket that denies the care but requires further investigation and specific authorization rather than pre-authorization based upon documentation of medical necessity for that specific individual.”

Besides reducing costs and increasing access, a formulary should, theoretically, also reduce the need for utilization review, independent medical review and opioid addiction. Drugs are the single largest review component in UR and IMR according to studies by the California Workers' Compensation Institute, and opioids, which would be outside the formulary, should decrease significantly.

Denying a person his opioids, though, likely will just send him to the street for substitutes. As Michael Gavin, president of Prium, recently noted in his blog, when Purdue Pharma changed the formula for OxyContin so that it could not be so easily altered for "recreational use" the incidence of heroin use rose dramatically.

Gavin says that while overall opioid prescriptions appeared to have declined 19% from projected volume, heroin overdoses increased by 23%!

The parent company to Prium, Ameritox, recently released a study, Gavin noted, that concludes:

• 4 out of 5 heroin users abused prescription drugs first
• 56% of the time, in heroin positive samples, the opioid prescribed to the patient was not found
• 66% of heroin users abused both heroin and prescription painkillers in the last month

Mark Pew, Prium's senior vice president, said that the "true success from a drug formulary would be a decrease in disability, a decrease in addiction and dependence, an increase in return to work and in increase in the use of less dangerous drugs.”

Agreed - but these goals are in terms that what the workers' compensation industry can measure against it's own information. We may fix OUR problem, but not THE problem.

Don't get me wrong. I think a drug formulary is a positive supply control method that should make it easier for injured workers to get the drugs that are included in the formulary, and that likewise should reduce both direct and indirect costs.

Thinking that the health of those who are pre-disposed towards abuse will improve overall, however, is wishful thinking - that burden and cost just gets shifted onto the public sector in some other manner.

Give And Take

California is considering the adoption of a prescription drug formulary and a bill has been introduced into the Assembly directing the Division of Workers' Compensation to do so.

Assemblyman Henry Perea, D-Fresno, on Feb. 27 introduced AB 1124, on his own, rather than carrying the measure for a sponsor, according to his press secretary, Alicia Isaacs, in order to "start the conversation."

A formulary is essentially a list of approved drugs for which carriers would have to pay without much debate or review, if any.

The conversation had been started a couple of years ago, frankly, when the California Workers' Compensation Institute, among other research agencies, started noting the increasing burden that drugs have on the workers' compensation system in terms of costs, and the detriment to injured workers that were being given drugs for "off label" use - primarily opioid variants to control pain.

Bernardo de la Torre, president of the California Applicants' Attorneys Association, indicated to WorkCompCentral Monday that the organization isn't necessarily against a formulary, but that there must be alternative provisions in case a person can not tolerate a particular drug or if what is in the formulary is not effective.

He said a formulary should include all medications and drug therapies that are available for a covered medical condition. Additionally, CAAA believes a formulary that includes only generic drugs "constitutes an unreasonable restriction" on the treatment of injured workers, he said.

Finally, he said prescriptions for a formulary drug from a network provider should not be subject to utilization review and IMR, de la Torre said.

Inclusion of "all" medications and drug therapies for a given medical condition does not seem workable to me, but the other requests seem reasonable.

Abraham Verghese on the failed human component of medicine.

There are two extreme examples of drug formularies in existence now: Washington and Texas.

Washington is seen as a more conservative formulary and much more restrictive than the one adopted by Texas a few years ago.

Both have been instrumental in controlling pharmaceutical expenses and have resulted in fewer opioid consequences - largely because those drugs aren't authorized for much.

In the WorkCompCentral article, president of Voters Injured at Work, Jesse Ceniceros, was critical of the talk of a formulary adoption, characterizing the plan as another attempt at cutting benefits under the guise of controlling costs.

"Who's saving what? All they're doing is taking away," he said. "It continues year in and year out."

And frankly Ceniceros makes a good point - study after study has affirmed that different treatments, such as physical therapy and cognitive pain management adaptations, are as good if not better than a fistful of drugs.

But by and large workers' compensation does not pay for these alternatives, or does not pay adequately so physicians are loath to engage them.

Reimbursement rates for office visits, where bed side listening can occur and is often very effective (sometimes folks just need someone to "listen") are generally too low, if there's any reimbursement at all, so physicians don't practice this important part of the care delivery equation.

In California, chiropractic therapy is limited to 24 visits - an artificial number that was a compromise arrived at when there was huge abuse by a few bad apples in the chiropractic community. But certainly there are instances when paying for an adjustment is cheaper than paying for the aftermath of prescription drugs gone bad.

In other words, what has happened over time is that treatment alternatives have been constricted so that handing an injured worker a bottle of pills is the only reasonable option.

We certainly can't discount the financial incentives that drug manufacturers and their distributors wave in front of physicians either - these conflicts of interest exacerbate an already volatile situation.

But, as Abraham Verghese pointed out in his excellent TED talk that I blogged about some time ago, there is a medical ritual that is transformative to patient healing: listening and then examining. The message this conveys to the patient is, "I will always, always, always be there. I will see you through this. I will never abandon you. I will be with you through the end."

Workers' compensation on the other hand seems all about abandonment.

Imagine if workers' compensation actually communicated "I will always be there."

So here's the bottom line:

The debate over a drug formulary needs to include as discussion points exclusion of formulary prescriptions from utilization and independent medical reviews, and a review of alternative therapies that can take the place of drugs in the first instance with adequate reimbursement schedules to promote those alternatives.

Give and take. Don't just take.

Pharmaceutical Conundrum

Drugs and workers' compensation seem to go together.

And it seems, generally not for the purpose of ensuring the injured worker gets better.

2 stories in WorkCompCentral this morning highlight the creep of prescriptions into work comp and demonstrate how these become issues later down the road.

First, the Federal Drug Administration has been studying whether to reclassify marijuana out of the current Schedule 1 classification. The FDA has been looking at this since 2013.

Doing so would essentially be an admission by that administration that there are some legitimate medical and therapeutical value to pot.

Though New Mexico courts have ruled, twice now, that workers' compensation insurance companies must pay for medicinal marijuana as part of their medical liability, other states have not gone that far, and most payers are not authorizing payment for pot because it is still a Schedule 1 drug.

And the state trend to legalize marijuana, both for medicinal and recreational use, continues, exacerbating the friction between the federal law, state law, and medical research (which, for the most part sanctifies marijuana for very limited medical purposes, and generally no conditions that are typically the provence of workers' compensation cases).

States are also encouraged by the probability of increased tax revenue from pot, looking at pioneer Colorado's tax income as evidence. That state saw $45 million in pot tax revenue as of the third quarter in 2014 according to the Washington Post - revenue that otherwise would not be realized at all when the drug was solely under ground.

Some observers say that the introduction of marijuana into the work comp system as a recognized treatment option may affect the employment of injured workers because employers are going to be reticent to have pot users return to work to, for instance, operate machinery, until they can demonstrate lack of THC in their system.

Bowzer confronts the Conundrum

Of course, the likelihood is that the folks that are using pot now are probably working with it in their systems now - employers just don't know it for sure even though they may suspect it.

Combine the marijuana issue with physician dispensing compound medications, and we have a new, powerful trend to deal with.

The practice of medicine is, after stripping away the Hippocratic Oath, after all a business, which means there's a profit motive.

There are a few in the medical field for whom "In God We Trust" is more compelling than "Do No Harm." But these few disgrace the rest of the profession, and provoke undue burden on doctors who take The Oath seriously.

The Workers Compensation Research Institute issued a report the past week that physician dispensers had found a way around price controls adopted by both Illinois and California: The doctors dispense drugs in unusual dosages, such as 7.5 mg, which allows repackagers to adopt a unique National Drug Code number instead of using the NDC assigned by the drugs' original manufacturers.

WCRI found that physicians were dispensing a 7.5 mg strength formulation of the muscle relaxant cyclobenzaprine, a 150 mg extended release version of the painkiller tramadol, and a generic formulation of Vicodin containing 2.5 mg of hydrocodone and 325 mg of acetaminophen. Because there had been no corresponding increase in those novel dosages dispensed by pharmacies, WCRI concluded, "it is likely that financial incentives drove some physicians to choose the strength for their patients."

What WorkCompCentral reporters found was that the FDA database shows just 19 suppliers of the drug formulations highlighted in the WCRI report. Seven of them provided all three of the formulations, three that supply hydrocodone and cyclobenzaprine, five that only provide cyclobenzaprine and one that only provides hydrocodone.

Several of the companies had been fined or warned by the federal government for engaging in unsafe practices, while another paid $12 million to resolve allegations that it paid kickbacks to doctors to prescribe its products.

One company highlighted in the story markets itself an industry leader in "prepackaged pharmaceuticals." It offers physicians drug-dispensing software that will fill clinics with "healthy patients and healthy profits."

So while states are going to tackle with physician dispensed compound drugs, and just may eliminate all physician dispensing (which in my opinion is the only way to deal with removing the inherent conflict of interest, except in emergency or special circumstances), the new "mole" will arise: legitimization of marijuana and a whole new revenue stream.

Formulary Coming To You

A panel presentation at the the upcoming Workers' Compensation Research Institute's 31st Annual Issues & Research Conference (March 5–6, 2015) to be held in Boston, MA will review physician dispensing of pharmaceuticals and the impact on costs (of course) and health outcomes for patients.

This is a timely topic as the trend of prescription drug formularies is spreading across the nation, and part of the debate is whether or not doctors should be fulfilling prescriptions from their offices.

Regulators in Tennessee, Arkansas and Oklahoma are writing proposals to establish a formulary based on the Official Disability Guidelines. The Maine Workers’ Compensation Board is forming a task force to consider creating a formulary, while California regulators have wrestled with the idea for years.

Formularies are already in place in Texas, Washington and Ohio. Oklahoma is operating a formulary under emergency rules that expire in September.

Formularies' primary purpose is to restrict the prescription of opioids and compounded drugs and that should lead to reductions in the number of injured workers receiving those drugs. Texas' experience seems to support that goal.

Texas adopted a closed formulary in 2011. Since then, the number of opioid prescriptions for injured workers in the state has dropped 10%, according to the Workers’ Compensation Research Institute. Prescriptions for opioids not on the formulary list have dropped 60%, while scripts for all drugs not in the formulary have fallen 70%. Overall prescription drug costs for injured workers have declined 15%.

A study by WCRI published last year postulated that a Texas-like formulary would likely result in savings for other states. The institute’s researchers found that if physicians in other states behaved the same as Texas doctors, a Texas-like formulary would cut prescription drug costs 29% in New York, 25% in New Jersey, 18% in Florida, 16% in Illinois and 14% in California.

The California Workers’ Compensation Institute in its own study last year found that a Texas-like formulary would cut prescription drug costs by $102 million to $541 million annually in California.

Alex Swedlow, president of the California Workers' Compensation Institute, will be part of a panel on physician dispensing at the conference.

Certainly the insurance community likes the idea of "closed formularies."

This chart has nothing to do with formularies - I just thought it was a neat infographic...

The American Insurance Association supports formularies, and is lobbying legislatures to adopt Texas' process, which is based on The Official Disability Guidelines published by the Work Loss Data Institute.

Still, the handful of states that are considering formularies doesn't mean that this is a sweeping trend.

As Maine Workers’ Compensation Board Executive Director Paul Sighinolfi told WorkCompCentral, “The real focus is to minimize pain as much as possible and ... bring [injured workers] back to a functioning level, and I think that's what our focus is really going to be,” citing concerns that insurance companies and other claims payers will use formularies solely as a means to cut expenses.

The WCRI study found that claimants in Texas increased the use of alternative options such as non-steroidal anti-inflammatory drugs and physical therapy since the state’s formulary went into effect in 2011, effectively shifting medical spending away from opioids and toward those treatments.

Regulators in California have the same concern.

California Department of Industrial Relations Director Christine Baker told state legislators in 2013 that the department was considering a formulary as part of a package meant to fight the over-prescription of opioids. The department is still looking at the issue.

"We are doing due diligence in terms of researching the benefits both from an appropriate medical care standpoint, because that's really important that injured workers get appropriate medical care and there are formularies that can do that, (and) we are also looking at it from a (cost-benefit analysis) standpoint," she told WorkCompCentral Wednesday.

States in general like to watch what happens with an innovator for a couple of years before considering adoption of something new. Then there seems to be a tidal wave that sweeps across jurisdictions in an exponential way.

My best guess is that formularies are more likely than not to be a part of your workers' compensation system within 10 years - particularly if California adopts one because state legislators and regulators like to see how a very large system adapts so anticipated issues can be planned.

The WCRI conference will also include presentations on the Affordable Care Act, fee schedules, and lessons from a couple of decades of "reforms" reflecting the last couple of trends across the nation.

Get On Your Bike and Ride

Yesterday, after posting about mental health and its importance to the overall workers' compensation claims process I went for my morning bicycle ride.

Those of you who know me, or who have followed me for a while, know that I'm obsessed with cycling. I don't "follow" the sport like most sports aficionados because I can't sit long enough to "watch" anything, but I like to ride.

I have always been that way - I'm one of those "doers" - and I've been "doing" pretty much anything related to 2 wheels since I could ride without training wheels.

That also means that I have had more experience with the downside of two wheels than most people - aka crashing, or at least falling.

That's just a part of life on two wheels; eventually you WILL go down. Hopefully it is not that traumatic of an event, but it is a fall, and it does hurt.

I'm also fortunate (or maybe not) to have a very high tolerance for pain. Pain doesn't affect me as much as most people. Yep, things still hurt when I'm stupid and fall off my bicycle, but for the most part I just pick myself up, utter a few curse words, try to wipe up the blood as well as possible, and carry on.

Sometimes, like when I ended up in intensive care for a week due to a host of serious internal injuries after a particularly bad get-off, I endure a bit more pain than normal. In those situations it's just my body telling me that, yep, it really IS bad this time! I was thankful for the Demerol drip that time...

But for the  most part injuries are just part of my life. Which means pain is also just a part of my life.

Bowzer crashed into a wall, but dealt with the pain.

My wife can't tolerate any pain. She is a s frail a flower as I know. She complains of the slightest discomfort. Any minor bruise, burn or laceration causes her great irritation and misery.

The sight of blood terrifies my wife and she goes into shock - like the time I was riding "trials" on the rock jetty in front of my house on my mountain bike a few years back. I missed a step and got gored in the leg by a piece of rebar. Blood was spurting everywhere and of course I knew I needed stitches (and a tetanus shot), but my wife was so overwhelmed by the sight of blood that she couldn't drive me to the emergency room - she had to sit shot gun while I operated the throttle and brake with my left foot.

What is it that makes some people so resilient and able to deal with adversity, pain and suffering only to come back better, stronger and ready to take on more?

And others who can't tolerate nearly any pain or get set back by seemingly minor issues?

I was reminded of this yesterday after, serendipitously, posting about mental health. Took a little spill on my bicycle after only about seven or eight miles of what I had planned to be about a fifty mile ride.

The worst part is that I wasn't even going fast, which made me mad - there's nothing worse than an active person sustaining injuries in a relatively non-active way...

After picking myself up off the pavement I assessed my injuries: blood gushing from my right hand, blood all over my left calf and thigh, left shoulder abraded but thankfully no damage to the new cycling jersey I was wearing.

I hosed myself off with the water bottle, cursed a whole bunch for being stupid, saw that blood was spurting out everywhere ... and got on and rode to complete that fifty miles.

The injuries sort of hurt - I mean, lacerations, abrasions and contusions eventually induce some pain. But what I noticed most is that the cut on my right thumb wouldn't stop ejecting blood and that damned red stuff was getting all over everything.

To my compulsive way of thinking this was a huge inconvenience. I had a mission - complete my ride! But blood was getting in the way of that mission.

I was reminded of the time I went windsurfing in some big surf before work one day, ended up "biting" the sail boom on my first tack out through the waves and spit out my broken front tooth. Most rational people would call it a day, head back to shore and get an emergency dental appointment.

Not me! No sirree ... give up premium wave sailing just because of a broken tooth, cut lip, and enough blood to attract an entire school of sharks?!

And so it was with my thumb ... what do I have on me that I could tourniquet that thumb so I can complete my ride? Sunglass bag in my pocket! Wrapped it up, tied it up, thumb throbbed and wasn't much good for griping the handlebars, but I could still ride.

In the good old days when I was less tolerant of others I could not understand why some injured workers couldn't just wrap it up and still ride. I didn't have any compassion for those people who were unable to overcome a little pain and discomfort.

I've matured now, and understand that a lot of people can't tolerate pain like I can. And that's just part of the mental profile of being human - the variance in which we perceive and deal with pain is huge.

This is what makes the issue of "pain" in workers' compensation so controversial. Some people, like me, have something going on either psychiatrically, or psychologically, or both, that minimizes the perception of pain. To those of us, pain is an inconvenience but we adapt.

There are others, like my wife, who perceive pain in a much different way and for whom pain is a major concern, interferes with nearly all daily living activity, and which has no place in life.

In workers' compensation schemes we try to account for pain. There are pain scales. Some doctors specialize in treating pain. Impairment tries to adjust for pain.

For some people accounting for pain is over-compensation. For many others there isn't any adequate compensation.

In the civil world a jury awards money based on "pain and suffering." It's up to a dozen people of the community, with their collective experience, judgement and knowledge, to determine if someone is really experiencing pain and what that pain is "worth."

In workers' compensation we have disability guidelines and statutory schedules that tell us what an impairment is worth, and sometimes there is a factor to adjust for pain perception.

We know now that prescribing certain medications, e.g. opioids, is more risky and has worse effects on the pain patient than the pain itself.

And there will always be injured workers for whom the remedy is inadequate. There is no adequate answer for them, unfortunately, other than perhaps providing as much emotional and psychological support as possible to assist those persons in dealing with pain.

Mental health treatment is as much a part of workers' compensation as physical health treatment.

As for me, I'm going on my bike ride now.

Drug Testing En Masse Risky

A federal appellate court gave a pyric victory to an employer in Tennessee, remanding a case back to the trial level because the reasons for mass drug testing of its workforce might have a reasonable basis and not be violative of the Americans with Disabilities Act; that it was an issue for the jury and not the judge.

Dura Automotive Systems is a manufacturer of glass windows for cars, trucks, and busses. Its facility contains a variety of heavy equipment and active machinery, including high-temperature injection molds, presses, air powered tools, cutting machines, die casts, fork lifts, tow motors, hi-lo lifters, and portable cranes.

Between the end of 2006 and early 2007, the company claimed, workers at its Lawrenceburg, Tennessee plant experienced substantially more work-related accidents than Dura's other facilities. Several employees allegedly also tested positive for controlled substances after their accidents.

Dura said that Lawrenceburg police had alerted its local management of illicit drug activity taking place at the plant.

The company decided to implement a new substance-abuse policy, which appeared in the March 2007 revision of the employee handbook and a July 2007 document issued by the company’s human resources department.

Pursuant to this policy, Dura reserved the right to conduct drug tests on its employees, and employees were expressly prohibited from “being impaired by or under the influence” of alcohol, illegal drugs, prescription medications, or over-the-counter drugs, if the use of such drugs endangered others or affected their job performance.

In May 2007, Dura ordered a plant-wide drug screening of the Lawrenceburg facility’s more than 400 employees. Dura hired Freedom From Self to administer the drug tests to its workforce.

Dura instructed FFS to test for 12 substances—amphetamines, barbiturates, benzodiazepines, cocaine, ecstasy, marijuana, methadone, methamphetamine, opiates,oxycodone, phencyclidine, and propoxyphene—some of which appear in prescription medications.

Velma Bates, Claudia Birdyshaw, Mark Long, John Toungett, Carolyn Wade, Richard White and Willarene Fisher had all worked for Dura at its Lawrenceburg plant.

Between them, Bates, Birdyshaw, Wade, White, Long, Toungett and Fisher, had prescriptions for oxycodone, Cymbalta, Didrex, Lortrab, Soma, and Xanax. They claimed that their use of these medications was what yielded positive results on the FFS drug test.

Dura placed all workers who tested positive on a 30-day leave of absence and instructed them to inform FFS if they were taking any prescription medications that contained the prohibited drug compounds.

An FFS employee then identified which of the medications carried a warning from the manufacturer for users not to operate dangerous machinery while taking the drug. FFS relayed this information to Dura, which informed the employees taking the medications that they would be terminated if they continued to use the drugs. However, if the employee tested negative after a second drug test, Dura said the worker would be allowed to return to work.

Wade and Fisher complied with the requirement and Dura reinstated them to their positions. But the remaining plaintiffs continued to take their medications and Dura fired them after they again tested positive.

After the drug testing, Dura claimed, the accident rate and amount of property damage at the Lawrenceburg facility decreased.

Bates, Birdyshaw, Wade, White, Long, Toungett and Fisher filed a complaint against Dura in May 2008 alleging the company had violated the ADA by subjecting them to an unlawful drug screening and then terminating them on the basis of their disabilities, or perceived disabilities.

There is some procedural history where the case goes back and forth between the trial court and the appellate court to resolve issues such as standing to sue, reclassification under different portions of the ADA and other issues.

Ultimately the trial judge found that Dura's drug testing of its workforce qualified as a medical examination or disability inquiry, in violation of Section 12112(d)(4), as a matter of law. The jury then returned a verdict collectively awarding the plaintiffs over $870,000 in damages.

On appeal, Dura argued that its drug testing had screened for substances that were "either illegal or, even if legally prescribed and used, may impair an individual’s mental alertness or motor skills" thus constituting an unreasonable business risk given the busy factory and heavy machinery, thus the drug testing was "job-related and consistent with business necessity."

The plaintiffs said that Dura's "plea for safety inside the front door of the plant," was a merely a pretense for conducting a drug test protocol that "was designed to seek information on possible weaknesses in employees." Thus, they said, the "substance screen as practiced by Dura Automotive Systems was a medical exam."

The 6th Circuit said the issue was not so clear-cut and that the issue of whether Dura violated the ADA should have gone to the jury and could not be found as a matter of law.

"Much depends on Dura’s credibility," the court said, stating it was possible a jury could see Dura’s explanation as a pretext, or find that the drug test had targeted information about employees' physical or mental health, regardless of Dura’s stated intent.

But it was not a matter of law that Dura violated the ADA.

The case is Bates et al. v. Dura Automotive Systems, No. 11-6088.