Opioid Use in Worker’s Compensation

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Today’s post comes from guest author Tom Domer, from The Domer Law Firm.

Many of my back-injured clients use pain relief medication in the opioid family: Hydrocodone (Vicodin), Oxycodone (Oxycontin or Percocet), Fentanyl (Duragesic or Fentora), Methadone, and Codeine.  Many variations of opioids exist, each with a different level of potency. The worker’s compensation industry has labeled excessive opioid use “an epidemic, particularly targeting worker’s compensation.” The Center for Disease Control has noted the problem of opioid abuse as a national danger.

The CDC latest statistics show close to 40,000 drug overdose deaths each year in the United States, more than half of which involve prescription drugs. Deaths in which opioids are used now exceed deaths involving heroin and cocaine combined. The drug overdose deaths are more numerous that motor vehicle crash deaths and the numbers have gone up every year since the turn of the century. One contributing factor is that many work-related injuries are back injuries, for which doctors increasingly prescribe opioids for both short and long term to address pain. CDC medical epidemiologist Dr. Leonard Paulozzi recently noted worker’s compensation medical providers may be exceeding guidelines from the American College of Occupational Environmental Medicine regarding the use of opioids and how long they should be used. Dr. Paulozzi noted 42% of workers with back injuries had opioid prescriptions in the first year after the injury, most of them after their first medical visit, but 16% of those workers were still receiving opioids a year after the injury. He noted while opioids might be good for use as acute medication, for example within six weeks after the injury, continuation of opioids is not indicated beyond that short term use.

Prescription medication has become a bigger portion of medical expense in all States, especially if the worker becomes dependent or addicted to the opioid medication to control pain.  Opioids are generally prescribed for several reasons in worker’s compensation claims, including catastrophic injury with chronic pain and injury involving surgical treatment necessitating pain control and general pain control.

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Why Overturning DOMA Is a Win for Employee Rights

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Regardless of your opinion on the issue of gay rights, Wednesday’s U.S. Supreme Court decision overturning the Defense of Marriage Act is a win for workplace fairness.

The constitutional authorization for most federal fair-employment laws is based on the guarantees of equal protection of the law based on the Fifth and 14th Amendments to the U.S. Constitution and the right of Congress to regulate interstate commerce clause. In his opinion overturning DOMA, Justice Anthony Kennedy found that DOMA violated the Fifth and 14th Amendment rights of gays and lesbians. He reaffirmed the role of the Fifth and 14th Amendments in preventing discrimination.

Kennedy’s opinion is important because in last summer’s blockbuster Supreme Court decision upholding the Affordable Care Act, Chief Justice John Roberts undercut the interstate commerce clause as a justification for passing federal legislation. Conceivably, corporate opponents of workplace fairness laws could point to Roberts’ decision in the Affordable Care Act as a way to argue that federal workplace fairness laws are unconstitutional. However Wednesday’s decision in the DOMA case means that workplace fairness laws still have clear and strong constitutional support.

The DOMA decision is a bright spot in a Supreme Court session that has otherwise been pretty bleak for employees. My opinion is that as a result of recent Supreme Court decisions, more and more fair-employment cases will be brought in state court. The decision in DOMA is still relevant to state law discrimination and retaliation claims. Most states have equal protection clauses in their state constitutions. The reasoning supporting the DOMA decision supports state fair-employment statutes. I believe this is true even for fair employment claims based on retaliation. As Justice Ruth Bader Ginsberg pointed out in her dissent in Nassar, retaliation is a form of discrimination. In other words, if you have been fired in retaliation for filing a workers’ compensation claim, your constitutional rights have been violated. If the Supreme Court had decided DOMA differently, employees would have a weaker argument that a retaliatory discharge violated their equal protection rights.

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Private Investigators in Workers’ Compensation

Corporations sometimes hire private investigators to verify that your claim is not fraud

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

As a workers’ compensation attorney I find it interesting that many people in the public question the disability status of injured workers. Let’s assume for the moment that you have sustained an injury on the job and you’ve been out of work for 5 months after back surgery. When you are unable to return to work quickly, the insurance industry has a lot of tools at its disposal to verify your disability status. They can pour over your medical records, pre- and post-injury, looking for any piece of evidence to deny your claim. They can send your file to lawyers who review medical records and recorded statements to potentially attack your credibility and honesty. They can hire a nurse to attend your appointments and speak with the physician and the staff, as well as obtain information directly from you. They can do background searches on you to see if you have a criminal or civil record. Obviously they will check to see if you ever filed a workers’ compensation claim before. They will also do social media and Internet searches on you and your family members (Facebook, Twitter, LinkedIn, etc.). They also can hire private investigators to follow you and your family around and take video recordings of your activities. With all these resources at the disposal of the insurance company, it’s hard to believe that many cases of employee fraud slip through the system.

A private investigator pretended to be a potential buyer and spent an hour or more going through the house.

We have one client recently who was followed by several private detectives for more than a year. They not only followed him around, but also followed his wife and son, who have no workers’ compensation claim. Another client had to sell his house because of his disability. A private investigator pretended to be a potential buyer and spent an hour or more going through the house. Does the concept of “Big Brother” come to mind? Are you concerned about invasion of privacy, particularly for family members, friends, and others who may be seen in such videos? We always tell our clients such activity may occur so don’t be alarmed by it, but that isn’t too comforting to people who are struggling through health issues, who have depression and anxiety problems, and who are sensitive to privacy concerns.

It would be interesting if the roles were reversed and employers who underpay premiums by misclassifying the status of their employees, who fail to purchase insurance required to protect their workers, and who don’t follow proper safety regulations that cause injury, were followed this closely by employees or regulators who administer the workers’ compensation program. I have no doubt that these employers and insurance representatives would be outraged.

 

 

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