How to Help Injured Workers Reduce Opioid Dependency

Massachusetts implements new opioid diversion track

By Deborah G. Kohl, Esq.

The significance of opioid dependency is clear to all participants in the field of workers’ compensation. The real issue facing the parties is how to deal with this problem. Should an insurer stop paying for the opioids? Should a judge determine if the injured worker should remain on opioid medication or enter into some type of weaning program? Should lawyers be tasked with creating treatment plans for their clients?

In Massachusetts, Governor Charlie Baker announced a new program at the Department of Industrial Accidents (DIA) designed to place those decisions in the hands of medical professionals rather than claims personnel, attorneys or judges. At a December 8, 2016 a press conference, the Governor, along with the Secretaries of Health and Human Services and Labor and Workforce Development, described a diversion track at the DIA for settled cases where the issue is the continued prescription of opioid medication. Because medical rights do not terminate upon settlement, the issue of opioids post settlement has become an increasingly high cost factor both in terms of dependency for the injured worker as well as dollars spent by insurers.

For almost a year, a joint committee of the Massachusetts Bar Association Workers’ Compensation Section and the DIA met to discuss ways to reduce dependency while at the same time reducing costs to the insurer. Under the statutory system, the insurer was left with only two choices when overuse or dependency was at issue. The insurer could simply stop paying for the medication or it could file with the DIA seeking to discontinue payments. In either case, the matter would then proceed to litigation eventually resulting in a judicial determination regarding treatment options. While an Impartial Medical Examiner would assist in this decision, ultimately it was left to a legal decision regarding medical treatment.

Under the new diversion track, the parties must both agree to engage in mediation and a removal from the statutory conciliation, conference hearing track. Once the parties agree in writing, the case will be assigned to a mediating judge who will bring the parties together to discuss potential treatment options. The insurer will fund a medical care coordinator to explore treatment options and to work with the employee throughout the process. Options are unlimited but could be as simple as discussions with the prescriber to begin weaning medications. Other options include further medical treatment such as physical therapy, psychological therapy, and alternative medications either in a comprehensive one-stop program or on an individual basis. For some individuals, an in-patient detox program may be needed.

The job of the mediating judge is to assist the parties in putting together a medically based program upon which the parties can agree. The ultimate result will be a written treatment plan and a contractual agreement between the parties pursuant to the Act.
This unique program seeks to use mediation rather than litigation to assist the injured worker throughout the process while at the same time working with the insurer to reduce costs. As Secretary Sudders stated, “care coordination is especially important to guide workers to the appropriate treatment and recovery support services”.

This program is voluntary and fast tracks these cases recognizing the human and economic costs of opioid dependency. Ultimately, only time will tell if this program is an appropriate solution to the problem; however, if at least one person is able to decrease their dependency on opioid medication, it will be a success.

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