A Consequence of a Compensable Injury

"Here, given the documented downturn in the decedent's mood and concerns her family had that
she might do herself harm, along with the autopsy report's conclusion that the manner of death
was suicide, the WCLJ had ample facts in the record to infer that the decedent's suicide was a
consequence of her compensable injury and consequential mental health condition.  Therefore, upon review of the record and based upon a preponderance of the evidence, the Board  Panel finds that the decedent's suicide was a consequence of her compensable injuries including  her established consequential depression."

Get used to language like this.  While we've made strides in workers' compensation with respect to opioids (see Peter Rousmaniere's special report out today), we still have a long way to go, particularly with so-called "legacy claims."  The decision quoted above comes from the New York State Workers' Compensation Board and covers the very sad story of woman injured in 1999 and the long, slow decline she experienced, resulting in her eventual suicide by oxycodone and diazepam.

You're going to be reading a lot more court decisions like this in the months and years to come.  The opioid prescription bonanza of the last 10 years is going to create a wave of cases like this over the next 10 years.  We're far more effective today than we've ever been in controlling early opioid use (though even in this category, we have a lot of work to do).  The challenge is going to be the claims that arose before we knew how severe this problem would turn out to be.

One of the many insights in Peter's report that struck me was the relative danger faced by injured workers in chronic pain.  He points out that the riskiest jobs in America (like logging, for instance) typically lead to about 1 death per 1,000 workers per year.  But injured workers on medium-to-high dose opioids for a year experience about 1.75 deaths per 1,000 patients per year.  

That's crazy.

Follow the link above, read Peter's report.  This should be required reading for everyone in work comp.

Michael
On Twitter @PRIUM1

The New Mexico Marijuana Case is Even Weirder Than You Think

Of all the states, who would have guessed that New Mexico would be the hotbed of medical marijuana court decisions?  Between the Vialpando v. Ben’s Auto. Servs., in May and the Maez v. Riley Industrial case, handed down earlier this month, New Mexico’s Court of Appeals appears to be one of the most pro-marijuana courts in the nation.

Back in May, when I first wrote about this issue, I wondered why the reasonableness and the necessity of the marijuana treatment was not questioned and our corporate counsel told me that surely there be additional case law to clarify this issue. 

Sure enough, the Court in Maez decided to take on the issue of the reasonableness and necessity of the marijuana treatment.  Mr. Maez suffered from an industrial accident and was being treated by Dr. Reeve.  Dr. Reeve had prescribed a variety of medications including several opioids and, as required for patients on long term opioid therapy, performed regular urine drug tests.  During one of those tests, Mr. Maez tested positive for marijuana.  Typically, recreational marijuana use, or the use of any illicit substance raises red flags with the prescriber.  But not Dr. Reeve! 

Dr. Reeve informed Mr. Maez that if he was going to use marijuana, he needed to have a medical marijuana license.  Luckily for Mr. Maez, Dr. Reeve was happy to provide him with one.  According to Dr. Reeve, “patients are going to use cannabis either one way or the other . . . if a patient requests that I sign [a license], I will sign it . . . but I’m not recommending . . . or in any way advocating for the use of medical cannabis.”  Dr. Reeve also considers the use of medical marijuana to be the patient’s decision “as it’s private and voluntary and it’s not overseen by a physician.”

So the guy ended up on a medical marijuana regimen due to a failed drug test.  That should be sufficient for the Court to find in favor of the payer, right? 

Nope.  And it gets worse. 

The Court went on to rationalize and interpret Dr. Reeve’s actions as reasonable and necessary stating that “[Dr. Reeve] adopted a treatment plan based on medical marijuana.  He would not have done so if it were an unreasonable treatment.”  Imagine if that logic was applied to all work comp medical treatment.  The doc says it’s reasonable… so it is.  State statutes and regulations have been evolving for over a decade to specifically counter this argument.   But not in New Mexico.    

And it gets even worse.

To take this determination one step further, since the physician said that it is Mr. Maez's decision to use medical marijuana, the Court, by default, has determined that the self-directed use of marijuana by this injured worker is reasonable and necessary because the physician signed off on it.  This is patient-directed care at its absolute worst. 

So, to recap what led to this decision: Illicit drug use, perpetrated by the injured worker, condoned by the doctor, and supported by a court of law.

I wish I could tell you that marijuana should be the least of your concerns, but if this is the specious logic to which we’re beholden… we’ll need better guidelines, better tools, and better lawyers.

Michael

On Twitter @PRIUM1