The California Workers' Compensation Institute has unveiled a second research paper on opioid prescribing in the California workers' comp system.

The paper is titled " Prescribing Patterns of Schedule II Opioids Part 2:
Fentanyl Prescriptions in California Workers' Compensation".

There has been increasing concern over the cost and increasing use of opioids in the system. The CWCI paper is likely to increase that scrutiny.

It will not surprise me if the incoming administration at the DIR/DWC choose this as an issue for additional regulation. Where in the pecking order this might come is not clear.

After all, the next DWC administrator will have to deal with issues surrounding a physicians fee schedule as well as possible regulations on nutriceuticals and medical foods.

Essentially, the second CWCI study claims (as did the first study), that a small percentage of physicians are accounting for a large percentage of the opioids prescribed in California workers' comp.

A piece written by Greg Jones for Workcompcentral.com several months ago noted that Steve Cattolica of CSIMS had objected to a press release of the first study in that it implied that physicians were dispensing much of these out of their offices, a claim that was not documented in the study.

I've included a link below to a pdf version of the second study. But here is the summary of the study:
"Parts 1 and 2 of the CWCI Schedule II Opioid Prescribing Patterns research series have shown that the 10 percent of physicians who write the most Schedule II opioid prescriptions for injured workers in California are associated with 79 percent of all workers’ compensation prescriptions for these types of narcotics, and for 84 percent of the fentanyl prescriptions. Most of the fentanyl prescriptions were transdermal patches, which have limited FDA approved uses and have been the subject of multiple FDA warnings. California workers’ compensation pain management guidelines also say the patches should only be used for chronic pain patients requiring round-the-clock therapy, who have developed a tolerance for other opioids, and whose pain cannot be managed by other therapy. Furthermore, there was no evidence of cancer-related illness or injury among any of the injured workers in the study sample, indicating that off-label use of fentanyl lozenges or tablets, which are only FDA approved for breakthrough, chronic cancer pain, has become an issue in the California system. The study found that off-label use of fentanyl was concentrated in the 10 percent of the claims (1,690 cases) with the highest volume of Schedule II opioid prescriptions, where nearly 12 percent (199 cases) had prescriptions for lozenges or tablets. The rate of off-label use was even higher for the top 10 percent of medical back cases with the most Schedule II opioid prescriptions – where 77 of the 525 patients, or nearly 15 percent, were prescribed fentanyl lozenges or tablets."

Focusing on Fentanyl prescribing, the report points out FDA concerns about Fentanyl:
"Of the Schedule II opioids included in the Institute’s study, the most potent is fentanyl, which is 75 to 100 times more powerful than oral morphine. Although fentanyl can be administered intravenously, all of the fentanyl prescriptions in the Institute study sample were either administered via a skin patch (transdermal) or as a lozenge or effervescent tablet (transmucosal). Due to increases in dosing errors and abuse of fentanyl drug products, the FDA has issued several warnings regarding the drug. For example, in July 2005, the FDA issued a health advisory regarding the safe use of fentanyl skin patches in response to reported fatalities among patients using the narcotic,2 and in December 2007, the FDA issued another safety warning in response to continued reports of life-threatening side effects.3 The FDA also has issued several recall notices of fentanyl patches for reasons of accelerated drug release or leaking gel – both conditions potentially leading to adverse reactions. In addition, in September 2007, the FDA issued a more specific warning regarding Buccal Fentanyl (Fentora and Actiq),4 stating “Buccal Fentanyl should be used only to treat breakthrough cancer pain (sudden episodes of pain that occur despite round-the-clock treatment with pain medication) in cancer patients who are taking regularly scheduled doses of another narcotic (opioid) pain medication and who are tolerant (used to the effects of the medication) to narcotic pain medications. This medication should not be used to treat pain other than chronic cancer pain.” Despite these admonitions, use of fentanyl in workers’ compensation systems continues to ncrease, as evidenced by CWCI’s March 2011 study, as well as a 2010 NCCI study and a recent federal court suit by the US Postal Service against Cephalon, the manufacturer of fentanyl lozenges and effervescent tablets."

For those not following this controversy, workers' comp analyst and blogger Joe Paduda has been a prominent voice chiding doctors groups on the issues. Here is an extended quote from one of Paduda's blog posts:
"This morning's WorkCompCentral had a piece by Greg Jones noting complaints by medical specialty groups about the study on physician prescribing of opioids recently released by CWCI. I received a copy of the letter as well, and frankly was surprised - for several reasons. What was most troubling was the statement that "Alone, the report's findings do not indicate that there is anything inappropriate."

Paduda stated "I would argue that the findings absolutely indicate there is something very, very wrong going on here. In fact, a relatively few physicians are "handling the bulk of the prescriptions"; that was amply demonstrated in the analysis and results provided in the report, the details of which were discussed in detail therein."

Challenging the doctor groups, Paduda claimed" Why was this not surprising to the medical society? Was it not surprising that a relatively few physicians were treating patients with low back sprains and strains for extended periods with relatively high doses of narcotics, when all evidence-based clinical guidelines do not support such treatment?"

According to Paduda, "The letter suggested CWCI conduct a deeper analysis to determine whether the treatment was appropriate based on treatment guidelines. Huh? Every treatment guideline I've heard of, including ODG, ACOEM, Washington State - none of them supports extended use of opiods for treatment of musculoskeletal issues. None. I would also note that the letter called into the question the methodology itself. The author of the letter's statement "it is clearly misleading to use the initial diagnosis" is inaccurate. Even a cursory review of the study methodology reveals the researchers used a rather sophisticated clinical grouper to identify the PRIMARY diagnosis, which may well not be the initial diagnosis."

In concluding Paduda notes that "Finally, the letter asserted that others had mis-cited or misinterpreted the CWCI work, and requested CWCI somehow correct, clarify, or take steps to correct those misinterpretations. Studies are cited and discussed and reviewed and analyzed in the media and by individuals all day every day; I just don't think CWCI has the time, resources, or obligation to monitor what everyone says about their research.I guess is the net is I'm really taken aback by the letter. There's clearly abuse going on here, along with bad medicine and out of control prescribing of very addictive, dangerous medications that are ripe for diversion and abuse. I'm just very surprised that instead of taking this seriously, a medical society would attack the messenger. There's something very rotten going on, and denying it is the wrong approach."

We haven't seen the last word in this controversy, and there may be questions about the methodology or sampling of the CWCI study.

And we haven't actually heard from some of the doctors involved, for example. Nor have we heard from some of the worker patients, many of whom I suspect would be highly trusting of their physician's judgment in such matters.

But one thing is for sure. The issue will get further scrutiny.

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com
www.thecompguys.org

One thing is clear about yesterday's Valdez en banc decision: the California Workers' Compensation Appeals Board has run out of patience with lawyers and claimants who attempt to circumvent the MPN and QME system.

The decision holds that where a worker is validly covered by an MPN, reports from doctors outside the MPN who treat are not admissible nor reimbursable.

In all likelihood the effects of the decision will be profound. Many non-MPN doctors who took treatment referrals from attorneys or other non-MPN doctors are likely to see their referrals dry up.

Yes, there will be ongoing fights about whether workers are bound by the MPN in the first place. And there will always be denied cases where non-MPN doctors will be able to treat.

But if a non-MPN doctor's report is neither admissible or reimbursable, the tendency to use such doctors will fade fast.

But the opinion of Commissioner Brass raises good points.

Brass concurred in this case because it appeared that the applicant left the MPN within 3 weeks on the advice of her attorney's firm.

But Brass writes that there may be good reasons in a particular case for a worker to go outside the MPN. He notes that "There may be a misdiagnosis, a lack of effective treatment, and/or an unreasonable delay in providing care".

Let's muse about this a bit.

Say the MPN doctor says you are fine, go back to work. You know you are
not fine but you try for a couple days. Your back is killing you and you wind up unable to walk. Getting up out of a chair you fall to the floor. Your 10 year old can't help you, so the ambulance is called. The hospital ER, which is not part of the MPN, runs a MRI. You have a herniated disc.

Does Valdez tell us that those hospital records are inadmissible? That that ER bill and MRI are not reimburseable?

If so, that's both shameful and unworkable.

One might understand the goal of having MPNs as a cost containment measure, and one might understand the impulse to cut down on manipulative attempts to self-procure treatment.

But workers' comp is dealing with a population that is in pain, sick, and often desperate. Situations develop that are resolved by ERs and emergency tests.

The board majority has now adopted a harsh rule which will be difficult to apply in such situations. That the board majority didn't address the concerns listed by Brass speaks poorly for their decision.

Suppose a worker has test, which the MPN doctor reads as negative. The worker then elects to get retested at a university-type center which has more sophisticated test equipment. The worker pays for the test, which documents the condition after all.

The parties then proceed to a panel QME or AME. Defense counsel writes to applicant's lawyer, objecting to the positive test results being shown to the panel QME or AME. The defense counsel claims that under the rationale of Valdez (and the recent Scudder panel decision), that the non-MPN test results are inadmissible, arguing that they are "fruits of the poisonous tree" and should not be shown to the QME/AME.

In an accepted skin cancer case the MPN doctor says you don't have now have melanoma cancer. The non-MPN doctor says you do. They operate on you and remove it. Not admissible? Not evidence the QME can see?

Again, if the comp system has devolved this far, to the point of this much procedure over substance, then the system may not be worth saving.

One could spend an evening easily devising a number of such real world examples of how disputes and medical diagnoses unfold. Many of those situations have nothing to do with avaricious attorneys who are attempting to subvert the MPN system.

Yet, as Brass notes, the WCAB majority has set forth a ham-handed rule that is overbroad.

Stay tuned.

Julius Young
www.workerscompzone.com
www.boxerlaw.com
www.thecompguys.org

California's Workers' Compensation Appeals Board has rendered an em banc decision on medical treatment and MPNs.

The case, Elayne Valdez v. Warehouse Demo Services, is likely to have a significant impact on the California workers' comp system.

In Valdez, there may have been a valid MPN. I say may, because the WCAB decision defers a determination on that issue, but analyzes the case on the assumption that there was probably a valid medical network.

For those of you late to the party, employers and insurers can set up networks, forcing workers who do not have a valid predesignation on file to treat with a doctor on the network.

Around the state, different patterns of workers' comp practice exist.

In Southern California workers and attorneys have often sought to regain
"medical control", finding technicalities to allow the worker to escape the MPN network and treat elsewhere. With a large number of doctors willing to provide such treatment, often on a lien, workers would sometimes treat off-network.

In Northern California this is seen much less frequently, probably because there is not a large pool of non-MPN physicians willing to "treat on a lien".

In Valdez, Ms. Valdez treated with an MPN doctor for about three weeks.
At that point, she apparently was referred to a non-MPN doctor by her attorney.

Valdez did not attempt to change doctors within the MPN. Nor did she invoke the infrequently used procedure to seek a formal "second opinion".

Nevertheless, at trial level the Workers' Comp Judge based an award of temporary total disability on the opinion of the non-MPN physician, Dr. Nario.

In deciding the case, a majority of the WCAB commissioners (Joseph Miller, James C. Cuneo, Deidra E. Lowe and Alfonso J. Moresi, with separate concurring and dissenting opinions from Frank M.Brass and Ronnie G. Caplane) take a hard line.

Where unauthorized treatment is obtained outside a validly established and properly noticed MPN, reports from the non-MPN doctors are inadmissible, and may not be relied on.

In a blow to the economic model of many of the non-MPN providers, the Valdez case indicates that the employer and insurer are not liable for the cost of non-MPN reports.

To reach this result, the majority makes several key points.

First, they note that workers can change doctors within the MPN and can invoke a multi-level appeal process within the MPN.

Second, they note that Labor Code 4061 and 4062 are QME process remedies where a party disputes determinations regarding medical treatment and diagnosis issues.

Third, they distinguish Labor Code Section 4605 and 5703(a) sections which appear to allow workers access to consulting or attending physicians at the worker's expense.

In a direct retort to Caplane's dissent, the majority notes that
"It is those applicants who have chosen to disregard a validly established and properly noticed MPN, despite the many options to change treating physicians and challenge diagnosis or treatment determinations within the MPN, and to dispute temporary or permanent disability opinions under sections 4061 and 4062 outside the MPN, who have removed themselves from the benefits provide by the Labor Code."

I'll be providing further analysis and reaction to this decision in a post in the next few days. Stay tuned.

Meanwhile, here is a pdf version of Valdez vs. Warehouse Services (2011):
http://www.dir.ca.gov/wcab/EnBancdecisi ... aldezE.pdf

Julius Young
www.workerscompzone.com
www.boxerlaw.com
www.thecompguys.org

Note: this post includes a correction to an earlier version of this post;;;

I'm not surprised that I received some response to my recent post, "The Outliers", which focused on a recently released study of opioid prescribing practices in California workers' comp.

That study, by the insurance industry's California Workers" Compensation Institute, has been picked up in scads of articles in various media outlets.

But in the interest of fairness, I'll share some comments from readers who present different perspectives on the issue.

I offer their comments to further stimulate debate, realizing that on the one hand anything that comes between workers' and doctors is anathema to some, while on the other hand some in the employer community would be happy to place further limits on treatment access.

One injured worker writes to point out that not all workers on opiates for chronic pain are "dope fiends". Reacting to the perceived vilification of workers treating for chronic pain, he notes that
"'I've been on Opiates for 5-6 years now, since they're the only medication that works for me, a chronic pain patient.
My Doctor sees me once a month, writes me a prescription, and I take it to the pharmacy.
The article you posted about Doctors making money off of handing out them doesn't apply in my case, and I use my medication judiciously and as prescribed.
Please mention in your Blog that all truly injured workers aren't dope fiends who use drugs for fun. If I didn't have mine I wouldn't be able to use my hands or arms."

A friend forwards me a reaction to my post and the CWCI study sent to him from a medical staffer at California workers' comp insurer:
"As to this study, there is no doubt that there is a lot of abuse in prescribing psychotropic and pain medications. Duh. However, it is not surprising that 3% of the doctors write the bulk of these prescriptions. I would surmise that these are the pain management guys who, for all their other faults, end up with the worst patients and therefore their prescribing patterns are not necessarily abusive. Its like saying that the top trauma hospital has a higher death rate per admission than Podunk Community. It's a good bet that the top trauma hospital has a much sicker patient population than Podunk Community. Similarly, neurosurgeons pay a higher malpractice rate than chiropractors or weight-loss doctors.

Note correction: an earlier version of this post included a critique passed on to me from a commentator which misstated authorship of the CWCI opioid study. CWCI study co-author Alex Swedlow has kindly noted that the sole authors of the study were himself, John Ireland of CWCI and Gregory Johnson, Ph.D, an independent consultant specializing in insurance and healthcare issues. Arnold Milstein was not involved with this study. My apologies to the CWCI authors and Dr. Milstein for this error.

This industry doctor goes on to argue his point, which I'll share here even though I'm not vouching for his views:
"Not to say that abuse by the pain management doctors is not a problem. It is. However, the solution to this problem is not simply going after the prescribing patterns, but rather the whole paradigm that has accepted this whole notion of "chronic pain management" as a validated medical treatment program that should be available to anyone who has pain that doesn't get better with standard treatments. This is a shortcoming of the ACOEM Guides, the ODG Guidelines and the Labor Code and needs to be addressed with honest outcome studies. The reason this practice flourishes in the workers' comp system is because it is predicated on the false notion that these programs actually get people back to work. It's the same argument that has allowed spinal fusion and other devices of medieval torture to become a standard of care for so long, the lack of meaningful studies to the contrary."

But wait. There's more.

My friend forwards an article from the March 6,2011 New York Times, by Gardiner Harris entitled, "Talk Doesn't Pay, So Psychiatry Turns Instead to Drug Therapy":
http://www.nytimes.com/2011/03/06/healt ... inerharris

Making his point, my friend notes that in our society we have trended toward a pharmaceutical fix to problems. Psychiatrists generally can't make it by doing on the couch counseling and analysis. Even the state-adopted treatment guidelines seem to favor medications over physical therapy, gym memberships and such modalities. Whollistic approaches and Eastern medicine type approaches aren't often allowed. So is the system reaping what it has sowed?

Three different approaches. All food for thought.

Julius Young
www.workerscompzone.com
www.boxerlaw.com
www.thecompguys.org

A few doctors doing an outsized share?

Where have we heard this before?

In 2010 CHSWC taught us that 3.9% of QMEs, often with sham "offices" in dozens of zip codes, were conducting 40% of evaluations :
http://www.dir.ca.gov/chswc/Reports/2010/QMEstudy.pdf

That's a supersized share.

Now, courtesy of a CWCI study, we learn that the top 10% of doctors who prescribe Schedule II opioids for injured workers in California account for nearly 80% of all workers' comp prescriptions for these drugs.

That's a supersized share.

The CWCI study claims that these Schedule II opioids (such as oxycodone, fentanyl, morphine and methadone), are being prescribed for even minor back strains and orthopaedic sprains.

Expensive, addictive, and potentially lethal, these drugs are said to be prescribed more often and in more potent quantities by the most frequent prescribers.

It's a topic that makes me uncomfortable. I'm seen a couple of clients wreck their lives through their pain cocktails. At least one overdosed.

The study, by CWCI researchers Alex Swedlow, John Ireland, and Gregory Johnson, can be downloaded in pdf format here:
http://www.cwci.org/research.html

Longtime comp system vet Bill Zachry of Safeway charged in an e-mail blast that
"...the abuse of opioids is just a tip of the iceberg. Opioid abuse is part of a larger problem that a relatively small group of physicians and applicant attorneys perpetuate in Southern California. It is my understanding that this small group of physicians and attorneys also account for many of the Southern California medical treatment liens for treatment that was not performed in accordance with evidence based medicine and that was provided outside of the Medical Provider Networks."

Zachry went on to opine that
"it is my opinion, that due to the massive profits that they get from self-dispensing, there is an inappropriate financial incentive for doctors to do the wrong thing, and, as a result, they are destroying the lives of injured workers."

Zacrhry did not note it in his e-blast, but a recent RAND study noted that financial incentives may be playing a role in increased dispensing of controversial "medical foods" and "nutriceuticals", particularly in Southern
California.

These developments will not make for appealing headlines for injured workers, attorneys and their friends in the medical community.

Outliers, be they be outsized QME mills or Dr. Feelgood pain-med prescribers, will come under increased scrutiny.

No amount of convention schwag or limo rides to the after-party should blind those in the system to what is going on. Abuses can kill the golden goose. We know that from past experience.

Zachry suggests that the best ways to stop opioid abuse is through a workers' comp prescription formulary and through limiting dispensing out of physician offices.

Among Zachry's suggestions:
-payers can achieve some limits by a "carefully crafted MPN contract"
-that employers and carriers have a pharmacy network with a formulary

More on those concepts in the future. Stay tuned.

Julius Young
www.boxerlaw.com
www.thecompguys.org