Thomas A. Robinson on Prescription Drugs and Workers’ Compensation

Last week LexisNexis published an Emerging Issues Analysis article on prescription drugs and workers’ compensation written by Thomas A. Robinson, the co-author of Larson’s Workers’ Compensation Law. The article examines opioid use, medical marijuana, physician dispensing, generic drugs, compounded drugs, and drug formularies. We’ve asked Mr. Robinson some questions related to his research for this article.

(Note: Lexis.com subscribers can access the Emerging Issues Analysis article here (additional charges may apply). Lexis Advance subscribers can pull up the article using this cite: 2015 Emerging Issues 7349 (additional charges may apply). The article can also be purchased at the LexisNexis Store.)

LexisNexis: Which topics do you cover in your emerging issues analysis article on prescription drugs and workers’ compensation, and why?

Robinson: In a real sense, I was interested in what seemed, at least to me, to be a disconnect—that on the surface, the provision of medicines to injured workers should engender little controversy, yet beneath that surface lay a teeming mass of conflict and disagreement. I identified two factors that appear to be accounting for much of conflict and discussion: (a) the significant increase in medical expenses, including the cost of prescription drugs, related to workers’ compensation claims; and (b) the staggering increase in the amount of opioid prescription painkillers dispensed in the U.S. since the beginning of this century. Those two factors—not to say that they are exclusive—have led employers and insurers to scrutinize every step in the prescription drug delivery process, examining not only the costs involved, but the efficacy of the prescriptions themselves.

In this paper, I document the tremendous growth in opioid use and discuss some specific problems related to widespread opioid use (e.g., addiction, the dangers when used in combination with other drugs). I also examine the 2014 ACOEM Guidelines for the treatment of various types of pain with opioids.

Because at least one recent study suggests the use of medical marijuana in the treatment of chronic pain and spasticity, I discuss this new phenomenon. In a true sense, this isn’t a prescription drug as such—it is still illegal at the federal level, which does not differentiate between medicinal and recreational use. But 23 states, the District of Columbia, and Guam have now passed laws that allow its use, at least in some circumstances. I discuss the dilemma within which this can place the employer/insurer: of having to provide, directly or indirectly, an illegal substance to an injured worker. I discuss the few workers’ compensation case decisions on the point.

Finally, I discuss other related issues: generic drugs, compounded drugs, drug formularies, and the particularly contentious issue—physician dispensing of prescription medications.

LexisNexis: Based on your research, what was the most surprising thing that you discovered?

Robinson: I knew that the use of hydrocodone was widespread. I did not realize that Americans consume 99 percent of the global hydrocodone supply.

LexisNexis: You spoke to some SMEs on the topic of prescription drugs. Who were they and what was the most important takeaway each of them gave you?

Robinson: I was quite privileged to engage two experts in the field: Mark Pew, Senior Vice President, PRIUM (Duluth, GA) and Suzanne Honor-Vangerov, Managing Attorney, Floyd, Skeren & Kelly, LLP (Westlake Village, CA).

Mr. Pew noted that that every state, except Missouri, has passed some sort of legislation authorizing a Prescription Drug Monitoring Program (PDMP). While the program can vary a bit from state to state, at its core each is a searchable database containing variable information related to every prescription drug dispensed within that state. Analysis of the data included in these databases can be used to identify prescriber shopping, pharmacy hopping, duplicative therapy, excessive dosage for patients, excessive prescription patterns for prescribers, and a variety of other important factors. More cooperation is needed, however, to join the state databases together since some patients choose to have some or all their prescriptions filled in a nearby state. 

On the issue of drug compounding, Ms. Honor-Vangerov pointed out that while compound drugs are supposed to be individually crafted to accommodate the needs of a particular patient, all too often their use is merely a way to drive additional revenue to the physician dispensing the compound or to the compounding pharmacy. She advises claims professionals and others to monitor those physicians' office that have a readily available supply of topical creams for office dispensing, as well as quick mail order shipment available—often on the same day of the office visit. It is difficult to justify the use of the compound medication in such cases since no customization is possible. 

LexisNexis: What is the most important emerging issue related to prescription drugs that workers’ comp professionals should know about?

Robinson: The tide appears to have turned, at least slightly, concerning the over-prescription of opioids. Recent studies show slight decreases in recent years, as more light has been shined upon the issue. The level of pain endured by injured workers has most likely not diminished in that same time frame, however. This leads one to wonder how chronic pain will best be treated and managed in the years to come.

LexisNexis: If there is one court case that everyone should read, which is it and why?

Robinson: I think the most important recent court decision is Coats v. Dish Network, LLC, 2015 Colo. LEXIS 520 (2015), because it illustrates two important sets of tension at play: (a) that between federal law, which outlaws the use of marijuana, and state law in those two dozen jurisdictions that allow its use, at least within a medical context; and (b) that between a sincere worker who has to endure chronic pain and an employer that desires a drug-free workplace. Indeed, in Coats, the plaintiff isn’t a stoned pothead; he’s a quadriplegic who has managed to carve out a work life in spite of his tremendous disability. He’s followed the Colorado rules and registered his use of medical marijuana. The employer has a zero-tolerance policy when it comes to the use of drugs. The employee tests positive on a random test and he’s fired. Is his activity “lawful”? Yes, according to Colorado; no, according to federal law. The nays have it, at least for now.

© Copyright 2015 LexisNexis. All rights reserved.