A North Carolina court recently ruled that death benefits should be provided to the widow of a worker who died from toxicity due to painkillers prescribed for his work-related injury. Legally, the outcome of this case is no surprise. In Alabama, our court has long held that the natural consequences flowing from a work-related injury are also considered to arise from the employment. Many other states view the issue similarly.
By itself, the case breaks no new legal ground. That worker did not abuse his medication. He followed his prescription. His tragic death was due to the original work injury which made these medications necessary. What I cannot determine from reading the article is if the prescribing doctor conducted periodic blood tests to check for levels of the medication in the worker’s blood. Physicians prescribing certain medications routinely perform blood tests to monitor for toxicity so they can change the prescriptions if needed.
My worry with this case is that insurance carriers will use this tragic death as an excuse to argue against chronic pain management for many other severely injured workers. While the carriers may falsely claim it is a safety issue, I believe their true motive is saving money by neglecting needed care. Insurance carriers already act in a number of ways to refuse needed care for workers suffering severe chronic pain. Here are a few of the ways carriers attempt to ignore the true need for chronic pain management in those patients suffering disabling pain:
- The Biased Functional Capacity Evaluation (FCE): Often the insurance carrier will send the worker for an FCE with a company-friendly provider. The carrier will claim the test is needed to determine the worker’s physical restrictions following the injury. This is the purpose of a FCE. The problem is often with the person doing the exam. If biased for the carrier or against patients suffering pain, the tester will interpret the effects of the chronic pain as malingering or exaggerating by the worker. Then, the results will not only be false but there will also be an assertion in a record that the worker is not being honest that the carrier can then use to its advantage.
- The Unqualified Physician: In Alabama (and some other states), the insurance carrier has certain rights to designate a doctor. This creates a great conflict between the need for real medical care and the carrier’s desire to save money. I have seen many occasions where the carrier authorizes a physician who is not qualified to treat these patients or who does not understand the full impact of chronic pain. In these situations, the physician is either unable or unwilling to provide needed care when it includes narcotic pain medications, epidural injections, or other invasive procedures. In some situations, the doctor is biased against the patient and interprets legitimate pain complaints as an issue of malingering, exaggeration, or other bad conduct by the patient.
- The “It’s All in Your Head” Conclusion: This usually goes hand-in-hand with number 2, the unqualified physician. I have seen more cases than I can count where an unqualified physician or the front line gatekeeper physician for the employer simply claims with very little examination that the worker’s pain is “all in their head” or emotionally based. On many occasions in my cases, a thorough examination by a later physician will reveal significant physical injury that was simply overlooked.
- The Use of Questionable and Unaccepted Tests to Document Doubt: Sometimes, the company’s physician will utilize very questionable tests to generate a false impression that the injured worker is exaggerating their symptoms or is not credible. Rarely, will the physician outright diagnose the worker as a malingerer. Instead, the objective is to simply cast doubt on the worker so that he/she will not be believed later at trial. These efforts are often effective as many attorneys do not review the medical literature on the tests conducted or even question the results. In my years of practice, I routinely see over-and-over the same tests whose reliability has been called into question by others in the medical community. These include the use of “Waddell’s signs” to claim that the worker is exaggerating their symptoms (despite the actual writing of their creator Dr. Waddell that this was not an appropriate use of his signs); the use of a grip strength test in a FCE as a measure of validity; and, the use of the Fake-Bad scale on the MMPI to claim a person is somehow being less than honest in the extent of a brain injury.
Managing chronic pain is a recognized medical specialty. Physicians can be board-certified as pain specialists with advanced training. Going back to the article from North Carolina, are narcotic pain medications a perfect solution for every case of chronic pain? No. A chronic pain specialist can evaluate a patient and determine the best treatment plan. Treatment can include many things, such as physical therapy, injections, medications, or other invasive means. The problem is that left untreated, chronic pain may save the carriers money but it costs the rest of us far too much.by Jeff Blackwell