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SB 863 and the Opioid/Chronic Pain Dilemma
By Steven D. Feinberg, M.D.

Steven D. Feinberg, M.D., is a board certified specialist in Physical Medicine & Rehabilitation, Pain Medicine, and Electrodiagnostic Medicine, and has authored many articles on pain treatment. In this article he discusses current issues with using opioids in treating pain in workers' compensation cases.


   
The four part-Los Angeles Times investigative report that began November 11, 2012, “Dying for Relief,” by Scott Glover and Lisa Girion, should be required reading for anyone involved in workers' compensation claims and/or treatment.

Part one of the series, “Legal drugs, deadly outcomes,” begins with a provocative statement: “prescription overdoses kill more people than heroin and cocaine.” The authors go on to say “Terry Smith collapsed face-down in a pool of his own vomit; Lynn Blunt snored loudly as her lungs slowly filled with fluid; Summer Ann Burdette was midway through a pear when she stopped breathing; Larry Carmichael knocked over a lamp as he fell to the floor; Jennifer Thurber was curled up in bed, pale and still, when her father found her; and Karl Finnila sat down on a curb to rest and never got up.”

 
Legal drugs, deadly outcomes

The recently passed Senate Bill 863, Section 1(d), is equally dramatic when it claims: “the current system of resolving disputes over the medical necessity of requested treatment is costly, time consuming, and does not uniformly result in the provision of treatment that adheres to the highest standards of evidence-based medicine, adversely affecting the health and safety of workers injured in the course of employment.”

Boy, is that ever the truth.

As a senior Physiatrist and Pain Specialist in California I have been involved in workers' compensation for a long time and have seen many reforms. A major question for this reform is: will SB 863, which is designed to provide more access to care, expeditiously stem the epidemic of failure to properly diagnose and treat patients with chronic pain, as established in the Chronic Pain Medical Treatment Guidelines of the Medical Treatment Utilization Schedule (MTUS)?

Although the MTUS (Labor Code §5307.27) has often been poorly understood and/or under-utilized by many, the chronic pain section is simple common sense: when an injured worker has risk factors for developing or has already developed the stigmata of chronic pain and where the traditional biomedical model will or has failed, a multidisciplinary evaluation is indicated to determine appropriateness of admission for an Early Intervention Program (EIP) or a full-fledged Functional Restoration Program (FRP) chronic pain program. To not do so is no different from seeing a burning house and doing nothing about it. The consequences of inaction are predictable. Is there any question about what will eventually happen?
 
Will SB 863, which is designed to provide more access to care, expeditiously stem the epidemic of failure to properly diagnose and treat patients with chronic pain?

Now we have entered a new stage of workers' compensation as a result of SB 863. Effective July 1, 2013, neither a Qualified Medical Evaluator (QME) nor Agreed Medical Evaluator (AME), or even a Workers' Compensation Judge, will be able to resolve a treatment dispute. Instead, Labor Code §4610.5 places treatment resolution disputes in the hands of an Independent Medical Review (IMR) physician who will not examine the patient face-to-face and who will be anonymous to both the patient and the insurance company. How will that affect chronic pain treatment?

I spoke recently with a respected senior primary care physician (PTP) who stated that he sees a 90% denial rate via the utilization review (UR) process. He describes the payers/employers in vitriolic terms. I have talked to other treating physicians and while the denial rate as they perceive it is not so high, many of them feel that the UR process does not work in favor of the injured worker with a high denial rate which is egregious from their perspective. Will this change as a result of SB 863? Perhaps. Perhaps not.

 
How will IMR affect chronic pain treatment?
Various limitations in SB 863 will substantially decrease the availability of treatment on a lien basis. So if treatment is denied then a patient may have nowhere to go unless a timely and proper IMR request is filed. The doctor has the right to act as an advocate for the injured worker, but the responsibility, obligation and right to file the IMR belongs exclusively to the injured worker. Since there will be no more treatment resolution by the QME or AME (for all injuries as of 7/1/13), who have an ability to see and actually evaluate the injured worker (instead of simply reviewing written reports), what will happen with IMR?

In the ideal world, one would hope the doctor in receipt of a UR denial would be right there as an advocate for the injured worker in their IMR appeal. But let's look at Labor Code §4616(d) which provides in part: "an employer or insurer shall have the exclusive right to determine the members of their network." Will doctors challenge the UR determination for the sake of the injured worker and risk being excluded from the MPN (and effectively lose their worke' compensation practice)? Time will tell. But one thing is certain: This choice places even the very best of doctors -- and the most ethical -- in an unnecessary and untenable situation.

 
In the ideal world, one would hope the doctor in receipt of a UR denial would be right there as an advocate for the injured worker
In our practice at Feinberg Medical Group (FMG), despite respect from the defense and applicant community, we are challenged daily with denial of care requests for routine treatment as well as for our FRP. We carefully document and explain our recommendations in accordance with the MTUS Chronic Pain Medical Treatment Guidelines. These Guidelines were established by the DWC Medical Evidence Evaluation Advisory Committee (MEEAC) and sourced partially from the Official Disability Guidelines (ODG).

I am regularly sought out as a speaker on these topics by both defense and applicant stakeholders. It seems so incongruous to hear from the carrier about the high (some even using the word “draining”) costs of legacy claims for patients with chronic pain when they could have used the MTUS to identify risk factors earlier in the claim to reduce (and sometimes even stop) this “drain” before it started. The laws regarding the Utilization Review and the MTUS have been in place since SB 228 and SB 899 almost nine years ago. Other medical guidelines have been in use since I became involved in workers’ compensation. Common sense preceded my entry into the profession. But, from where I sit now surveying the past and looking to the future, neither common sense nor the laws in place have been the order of the day. Instead, here we go again legislating what should have been known to all, and restating again what has been the law (standard of care?) for years; that is: You must address chronic pain as soon as possible with a multi-disciplinary approach and cannot “kick the can down the road” hoping that chronicity will just disappear if ignored.

 
Common sense preceded my entry into the profession. But, from where I sit now surveying the past and looking to the future, neither common sense nor the laws in place have been the order of the day.
So let's look at the law regarding the MTUS:
  • Recommended guidelines set forth in the medical treatment utilization schedule shall be adopted by the administrative director pursuant to Labor Code §5307.27;
  • Notwithstanding any other provision of law, medical treatment that is reasonably required to cure or relieve the injured worker from the effects of his or her injury means treatment that is based upon the guidelines adopted by the administrative director pursuant to LC §5307.27 (Labor Code §4600(b));
  • The MTUS established as a result of LC §5307.27 is presumptively correct on the issue of extent and scope of medical treatment as a matter of law (Labor Code §4604.5);
  • Each employer’s utilization review process shall be governed by written policies and procedures and approved by the Division of Workers' Compensation. These policies and procedures shall ensure that decisions based on the medical necessity to cure and relieve of proposed medical treatment services are consistent with the schedule for medical treatment utilization adopted pursuant to LC §5307.27. (Labor Code §4610(c));
  • UR denials or modifications must be consistent with the schedule for medical treatment utilization adopted pursuant to LC §5307.27 (Labor Code §4610);
  • Procedures governing the determination of any disputed medical treatment issues by the IMR must be in a manner consistent with LC§5307.27 (Labor Code §4610.5).
 
MTUS, UR, and IBR: laws relying on Labor Code §5307.27
The hierarchy in resolving medical disputes by the IMR is such that if the requested treatment is not addressed by the MTUS (8 CCR §9792.20 and 8 CCR §9792.26) the IMR must then go to peer-reviewed, evidence-based medicine. I am familiar with evidence-based medicine guidelines and served as an Associate Editor on the ACOEM Chronic Pain Guidelines Panel Chapter Update (2008) and also ongoing as a Medical Consultant to the ODG.

The MTUS clearly supports the functional restoration biopsychosocial model utilizing an FRP. Yet, UR vendors reflexively deny that which is in the MTUS and peer reviewed evidence based medicine. Perhaps this is a problem of the industry where the “can is kicked down the road” in hopes that the problem or the patient will go away in the face of a denial. Such an institutional belief is at the core of the need for seemingly regular “reforms.”

 
See Dr. Feinberg's article on Evidence-Based Medicine
How about doctors, lawyers, claims managers and adjusters stepping back and looking at the big picture? Think about identifying those risk factors of chronic pain earlier and saving the injured worker from a life of misery? Adjusters: wouldn't it be nice to stem the growing cost of legacy claims for medications and the inevitable compensable consequences? Lawyers: wouldn't it be nice to know the MTUS and get your client all the care established by Labor Code §4600? Society: Is there not an over-riding social policy that following the MTUS as enacted by LC §5307.27 will ultimately decrease workers' compensation premiums for the employer and prevent at times unmentionable and unnecessary suffering for the injured worker? May I stand up and say getting both doctors and carriers to finally follow the MTUS would be the single biggest reform in California history, potentially saving millions, if not billions, of dollars. Isn't that was SB 863 was supposed to be all about?  
May I stand up and say getting both doctors and carriers to finally follow the MTUS would be the single biggest reform in California history, potentially saving millions, if not billions, of dollars. Isn’t that was SB 863 was supposed to be all about?

Until the MTUS is followed by doctors and UR departments, the process of getting authorization will remain time consuming, problematic and a constant battle. Will SB 863 help or hinder us in getting the treatment we recommend for our injured worker patients?

Despite my trepidations, I think that SB863 and the reconstituted Division of Workers' Compensation MEEAC can be a positive factor in getting injured workers the care they need.

 
Will SB 863 help or hinder us in getting the treatment we recommend for our injured worker patients?

With that said, physicians will need to modify their behavior somewhat with improved measurement and documentation of treatment efficacy. Here is my guideline for reporting:

  1. The physician needs to provide a clear, legible and concise history and physical examination followed by diagnoses. I urge avoiding electronic medical record (EMR) boilerplate paragraphs.
  2. The medical reporting must contain documentation that the injured worker is educated about and understands the diagnoses and that the goals of treatment are less discomfort, improved function and staying at or returning to work.
  3. The injured worker must be educated to understand that medications may be used short-term to alleviate pain and other symptoms but are not curative or a long term solution.
  4. The reporting must contain specific goals to be achieved by treatment which are understood and agreed to by the injured worker.
  5. The report should contain an explanation that the request/prescription for treatment is to achieve and will result in a positive outcome (and therefore be efficacious) by way of improved activities of daily living (ADLs) which are measured/documented at the next visit.
  6. The report should provide an explanation that the request/prescription for treatment follows MTUS or other Guidelines and is supported by evidence-based medicine or is otherwise justified.
 
The medical reporting must contain documentation that the injured worker is educated about and understands the diagnoses and that the goals of treatment are less discomfort, improved function and staying at or returning to work.... medications may be used short-term to alleviate pain and other symptoms but are not curative or a long term solution.

Here are some examples of how a physician can explain the efficacy of a prescription for treatment:

a. Example 1: The physician can explain that while a fitness center self-directed exercise program is not mentioned in any guideline, there is evidence that such participation results in increased ADLs, maintains staying at work and reduces use of medications. It is clearly cost-effective and medically reasonable when explained in this way.
b. Example 2: The physician requesting an epidural can explain that there has been a recent deterioration in the patient's function with increased pain and lack of success with a medication increase and physical therapy. An epidural is medically reasonable given that the previous epidural provided six months of significant benefit by way of increased ADLs, maintaining staying at work and reduced use of medications.

 
.

How does SB863 change the playing field?

The IMR physician reviewer is anonymous but that individual is obligated to make rational decisions based on the MTUS and other guidelines where appropriate. It therefore behooves the prescribing physician to clearly identify how the recommendation for treatment meets those guidelines. A “bullet-proof” report would be one that clearly shows how the injured worker is appropriate for treatment and, when possible, clearly indicates the negative ramifications of not receiving the treatment. I recommend to doctors developing a check off list for common problems they encounter in their practice with reference to the MTUS and/or other essential support.

 
A “bullet-proof” report would be one that clearly shows how the injured worker is appropriate for treatment and, when possible, clearly indicates the negative ramifications of not receiving the treatment.
Let's take a look at authorization for a functional restoration chronic pain program. The MTUS Chronic Pain Medical Treatment Guidelines note that there are a number of barriers to success which may justify a more intensive functional restoration chronic pain program. These include a negative relationship with the employer, a history of poor work adjustment and satisfaction, a negative outlook about future employment, high levels of psychosocial stress including pre-injury, ongoing litigation and anger directed toward the employer/payer regarding utilization review denials, greater smoking rates, the use of high dose opioids, and pretreatment pain levels. These factors could be included in the check off list.

The MTUS provides criteria for admission to a functional restoration program including a thorough evaluation (called a multidisciplinary or interdisciplinary evaluation) and thorough documentation showing that previous methods of treating chronic pain have been unsuccessful, an absence of other options likely to result in a significant clinical improvement; the patient has a significant loss of the ability to function independently due to the chronic pain condition, negative predictors of success have been addressed, and most importantly, that the patient exhibits motivation to change, and is willing to forgo secondary gains, including disability payments to effect this change.

For example, when an FRP evaluation and treatment is recommended and the physician wishes to request authorization, I recommend including something like this in the Request for Authorization:

“In accordance with the Medical Treatment Utilization Schedule, I believe this patient should be evaluated to have treatment in a Functional Restoration Program. This injured worker has become dysfunctional and has developed a chronic pain syndrome. This patient is not able to manage his/her chronic pain syndrome successfully and has become dependent on escalating medications, the medical system and passive tools such as rest, ice or heat. This injured worker has not responded well to past treatments including injections, medication trials, surgery, chiropractic care and/or physical therapy. This patient has become sedentary, deconditioned, limited by a fear of re-injury and/or movement and shows poor body awareness. There is also evidence for depressive symptoms and maladaptive coping, and this patient spends an unusual amount of time resting. Sleep problems and sexual dysfunction are present as well. This patient is also somatically focused.

I have carefully explained to this injured worker the importance of reducing medications and becoming more functional and there is clear agreement that there is motivation to change on the part of this individual and a strong desire to return to work.”

Now we have all seen patients who go downhill fast. They become dependent on family members; they lose their savings and perhaps their home. In short, they lose hope. From the perspective of the carrier this is an atomic bomb of costs about to go off if this situation cannot be helped. All a claims manager has to do is look at their future medical costs to know that I am right. Again, when it finally explodes, the carrier calls it a “legacy claim” and a “drain.”

I applaud the emphasis on the MTUS in SB 863. Over and over again, the MTUS is laid out as the standard for both the doctor and employer. I can assure all stakeholders if the MTUS is simply just followed, as opposed to “kicking the can down the road,” the next reform may not have to begin with the language: “the current system of resolving disputes over the medical necessity of requested treatment is costly, time consuming, and does not uniformly result in the provision of treatment that adheres to the highest standards of evidence-based medicine, adversely affecting the health and safety of workers injured in the course of employment.”

What do you think? Are you part of the solution or part of the problem?

 
I applaud the emphasis on the MTUS in SB 863. Over and over again, the MTUS is laid out as the standard for both the doctor and employer.
Steven D. Feinberg, M.D.

Dr. Feinberg is a physiatrist and pain medicine specialist practicing in Palo Alto. He is an Adjunct Clinical Professor and teaches at the Stanford University Pain Service. Dr. Feinberg is a past president (1996) of the American Academy of Pain Medicine (AAPM). He served as a California Society of Medicine & Surgery (CSIMS) Year 2001 President. He serves on the Board of Directors of the American Chronic Pain Association and is lead author of the 2012 ACPA Resource Guide to Pain Medication & Treatment. He is the Medical Director of Cedaron AMA Guides Software.

Dr. Feinberg served on the ACOEM Chronic Pain Guidelines Panel Chapter Update and also as an Associate Editor and he also serves as a consultant to the Official Disability Guidelines (ODG). He readily admits to a bias towards a functional restoration treatment approach.

American Board of Pain Medicine
American Board of Electrodiagnostic Medicine
American Board of Physical Medicine & Rehabilitation
Qualified Medical Evaluator

Feinberg Medical Group
825 El Camino Real Palo Alto, CA 94301
Tel 650-223-6400
Fax 650-223-6408
stevenfeinberg@hotmail.com
Feinberg Medical Group (FMG)

 

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