Author Archives: Karl Voigt IV, Esq.

Workers’ Compensation and Insurance Medical Examinations

by Karl Voigt

Insurance medical examinations (IMEs) are a tool used by workers’ compensation carriers to control costs. Whether a claimant has been receiving benefits or is just attempting to obtain them, the carrier has a statutory right to send them for an examination with a doctor of its choice. These exams – if they turn out favorable to the insurer – can potentially end benefits or stop them before they even begin.

Section 314 of the Pennsylvania Workers’ Compensation Act allows an employer to request its employee to submit to a physical examination by a health-care provider at any time after an injury. The examiner is generally chosen and paid for by the employer. The doctor is also asked questions by the carrier regarding the necessity of medical treatment, the patient’s physical capacities, or whether a full recovery has been made. As a result, the doctor generates a report and, if it is used in litigation, the doctor will later testify by deposition against the injured worker.

Often examinations don’t take place at an actual doctor office; rather, they are at “IME farms”, companies that actually contract with insurance companies to perform dozens or even hundreds of IMEs a week. Then, these “farms” contract with doctors to perform the IMEs. You can only imagine that these doctors are selected by the “farms” because they give reliable answers that favor insurance companies. Rest assured that your attorney will be familiar with the reputation of the examining doctor. More importantly, judges are often very familiar with these doctors and their reputations. If a doctor performs far too many IMEs with curiously identical opinions, judges may be less inclined to find them credible. It is therefore sometimes actually a good thing for the injured worker if the carrier chooses to send him or her to a doctor who has a reputation as a “gun for hire”.

It’s always fun to cross-examine these IME doctors as to how many IMEs they perform a week and at what price, then how many times they testify by deposition as a result, and at what price. It’s not unusual at all to do the math and come up with more than half a million dollars a year just for doing exams for insurance companies.

The general rule is that carriers can get two IMEs a year.

Of course, if you fail to attend an IME, Section 314 goes so far as to allow the carrier to stop your benefits until you attend a rescheduled examination.

So, you’ve gotta show up at an office building and tell some doctor about the whole history of your injury – and before – and then be subject to yet another physical exam. There are of course general rules for attending an IME. First, you don’t have to bring any diagnostic studies or films despite what the notice might tell you. You are not required to be the insurance company’s servant. Let them do the work and get films if they want to review them. Second, you should be cooperative during the exam, but not volunteer too much information. Let the doctor ask you questions. If the doctor fails to ask vital questions, that can be used against him during cross-examination. Your attorney may want to discuss the physical portion of the examination more with you.

You should be reimbursed for your mileage if you drive to the examination.

Interestingly, Section 314(b) does give you the right to hire a doctor to attend the IME with you. Unfortunately, this is a cost that is not reimbursable to you by the carrier. It may be difficult to even find a doctor who would be willing to attend an IME as an observer.

When our clients attend an examination, they are given a brief form to complete after the exam, so we can begin to prepare for the doctor’s report. Naturally, when it becomes “your time”, we will be prepared and on your side.

 

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Maine Allows for Marijuana Use in Workers’ Compensation

by Karl Voigt

If marijuana law is a particularly dynamic field of practice, then marijuana law as it pertains to Workers’ Compensation law is even moreso mutable. We have all seen news coverage of individual states trying to get a handle on changing legal standards with respect to marijuana growing, sales, and use. Only now are we beginning to see coverage of new stories that involve using marijuana to treat work injuries.

Two very new cases come to us from Maine, where medical marijuana is legal. Both come from the state’s Workers’ Compensation Board Appellate Division and both serve to advance the use of marijuana to treat injured workers’ chronic pain. In Bourgoin v. Twin Rivers Paper Company, WCB App. Div. No. 16-26 (August 23, 2016) and Noll v. Lepage Bakeries, Inc., WCB App. Div. No. 16-25 (August 23, 2016), the appellate reviewers essentially determined that federal law does not prohibit requiring the workers’ compensation employer and insurer to pay for medical marijuana.

While Maine does prohibit private health insurers from paying for medical marijuana, there is no such prohibition against workers’ compensation insurers paying for that treatment. Therefore, in Maine, so long as it is found “reasonable and proper”, a workers’ compensation insurer can be compelled to pay for medical marijuana.

Pennsylvania’s law is not quite this liberal; the Pennsylvania Worker’s Compensation Act requires that workers’ compensation insurance carriers pay for work-related medical treatment. Because the US Food and Drug Administration (FDA) has never categorized medical marijuana as medical treatment, insurers in Pennsylvania likely cannot be compelled to pay for medical marijuana

Regardless, the Maine employers challenged the judges’ rulings, arguing that federal law prohibits use of marijuana as a controlled substance. Paying for medical marijuana, they insisted, would put them at risk for federal prosecution, as the federal government’s authority to prosecute drug crimes supersedes Maine’s. The appellate Board, referring to the federal Justice Department’s own public statements that interfering with state medical marijuana laws is not one of its enforcement priorities, ruled that there was virtually no such risk of such prosecution.

Both cases ultimately allowed not just for the injured worker to use medical marijuana for treatment of chronic pain, but also compelled the workers’ compensation carrier to pay for that treatment. This is just the most recent ruling in this fledgling area of law. Stay tuned here for updates.

 

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What is BU08028 and What Does it Mean to Chronic Pain Sufferers?

by Karl Voigt

In short, BU08028 is a new research drug that provides the pain relief of opiates, without their addictive effects. Trials of the drug have been conducted on rhesus monkeys with success that — it is hoped — will translate to humans. The trials, conducted at Wake Forest University School of Medicine, demonstrated a novel approach to pain relief without the risk of addiction.

Today’s pain management medicine relies primarily on opioids, like Vicodin or Oxycodone, that quell pain signals to the brain by interfering with neuron receptors known as opiod receptors, particularly the mu opioid peptide receptor (MOP). Unfortunately, these medications are highly addictive, as these MOP receptors also play a large role in regulating emotional impulses like the desire for reward, euphoria and cravings. That addiction can ultimately lead to respiratory failure and cardiac arrest.

Fortunately, the body has another type of neuron receptor called the nociceptin-orphanin FQ peptide receptor (NOP). Previous research showed that drugs that solely target NOP receptors can block the addictive effects of opioids. Building on that foundation, Wake Forest researchers created a drug that would simultaneously target both the MOP and NOP receptors to produce opioid-like pain relief while reducing the risk of addiction.

Two days ago, their findings were published in the journal Proceedings of the National Academy of Sciences. In short, monkeys were given the opportunity to self-medicate with this new drug. While the addictive nature of an opioid would make them repeatedly dose themselves, they did not do so when given the pain-killing BU08028.

While this breakthrough is impressive, the drug’s introduction is still years away. Studies on humans may start in less than two years. Find the Wake Forest abstract here.

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Workers’ Compensation and Medical Marijuana

by Karl Voigt

This April, the Pennsylvania legislature enacted Act 16 of 2016 (the Medical Marijuana Program),which will enable patients with serious medical conditions to purchase marijuana to treat their symptoms. This is viewed as a conservative approach to the legalization of marijuana in certain circumstances, not a wholesale and liberal distribution of medical marijuana cards. The goal of the legislature was to assist patients suffering from very serious medical conditions in alleviating pain and improving the quality of their life.

This is still a fledgling Act and the Commonwealth is reporting that the process will not be 100% ready until as late as April of 2018. The legislature is still working on implementing regulations and procedures for patients, doctors, growers and dispensaries. Once in effect, patients will be able to purchase medical marijuana only in some forms, not including dried leaves. It will be legally available as a pill, oil, topical, vapor, tincture, or liquid.

Marijuana will be available to treat only serious medical conditions, as defined in the Medical Marijuana Act:

  • Cancer
  • HIV
  • Amyotrophic lateral sclerosis (ALS)
  • Parkinson’s disease
  • Multiple sclerosis
  • Damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity
  • Epilepsy
  • Inflammatory bowel disease
  • Neuropathies
  • Huntington’s disease
  • Crohn’s disease
  • Post-traumatic stress disorder
  • Intractable seizures
  • Glaucoma
  • Sickle cell anemia
  • Severe chronic or intractable pain of neuropathic origin or severe chronic or intractable pain in which conventional therapeutic intervention or opiate therapy is contraindicated or ineffective
  • Autism
  • Terminally ill, where a medical prognosis of life expectancy of approximately one year or less if the illness runs its normal course
  • Ulcerative colitis

Most of our injured clients who qualify are going to have 1) damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity; or 2) severe chronic or intractable pain of neuropathic origin.

Because the Act conflicts with federal legislation that makes marijuana illegal, doctors can’t actually prescribe marijuana. Further, the US Food and Drug Administration (FDA) has never categorized medical marijuana as medical treatment. As a result, physicians in Pennsylvania can only recommend medical marijuana; it is merely a recommendation. Because the Pennsylvania Worker’s Compensation Act requires that workers’ compensation insurance carriers pay for work-related medical treatment, very likely carriers will not be responsible for the cost of medical marijuana.

Because doctors will be able to apply for certification to recommend marijuana in October, any of our clients who are interested in pursuing medical marijuana will have to ask their treating physicians if they intend to go through the process. If so, that doctor will guide them through the process. Otherwise, they will have to find a doctor who has chosen to obtain certification. If this is the case, our clients are urged to secure their medical records from their treating physicians for subsequent review by a certified doctor.

For more reading, check out the Department of Health’s website. The full text of the Act can be found here.

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Injured workers: Pennsylvania Republicans want a loan…from you!

by Karl Voigt

Injured workers: Pennsylvania Republicans want a loan…from you!

On June 29, the Pennsylvania Senate approved a $31.6 billion budget. The legislature is even today, Sunday, meeting to work out the details. Somewhat shortsightedly, they have yet to figure out exactly how to fund their new budget.

One idea tossed out by Republican lawmakers is to take out a loan from the State Workers’ Insurance Fund (SWIF) to help balance the budget. In what they have styled a “temporary loan” from the Fund, they would draw up to $1.5 billion from the insurer’s reserves. There are, however, no specific plans to actually repay the loan.

Some of you may be familiar with SWIF: they are a state run insurance fund that primarily insures employers in Pennsylvania that have a poor safety record or can’t secure policies elsewhere. They do not have the reputation of being the best-run insurer in the Commonwealth.

What the Republicans see is SWIF’s $1.5 billion in assets. These primarily bond funds are to be used by SWIF over the course of time to pay injured workers’ claims. However, the Republicans are seemingly ignoring the fact that SWIF has $1.7 billion in projected liabilities for injured workers’ claims. Meaning that SWIF’s money isn’t enough to pay its future obligations. So, if SWIF loans Pennsylvania its money, where will it get a loan when their money runs out?

Further, while SWIF collected nearly $214 million in premiums in 2015, its operating expenses actually exceeded that amount. Which means SWIF doesn’t operate at a profit; it is actually operating at a deficit.

So essentially, the legislature – operating at a deficit – is contemplating a loan from its own agency that operates at a deficit. Readers are encouraged to contact their local Representatives to let them know their thoughts.

 

 

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CDC Guidelines for Prescribing Opioids for Chronic Pain

by Karl Voigt

You may have seen in the news, or perhaps even here, that the Center for Disease Control has published new Guidelines for Prescribing Opioids for Chronic Pain. This is seemingly in response to not just the addictive nature of opioids, but also the quadrupling of deaths from prescription opioid overdose over the past 15 years. Since so many of our clients have been offered or prescribed opioid medications to manage their pain, it is worth a review.

OxyContin

The Guidelines are targeted to primary care physicians and not so much to pain management doctors. Most of these Guidelines focus on the criteria for initiating opioids and, frankly, they suggest avoiding it.

Interestingly, however, primary care physicians write nearly 10 times more opioid prescriptions per year than pain management doctors combined. Based on my own experience, I wonder if this is because pain management physicians often write the initial opioid prescriptions, then later pass along care to the patient’s primary care doctor.

The new Guidelines can be found here: http://www.cdc.gov/mmwr/volumes/65/rr/rr6501e1.htm.

The CDC also published a checklist for primary care doctors to use in initiating opioid prescriptions for their patients. It can be found at https://stacks.cdc.gov/view/cdc/38025.

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by | March 31, 2016 · 8:49 am

Pennsylvania Announces 2016 Average Weekly Wage

by Karl Voigt
Pennsylvania’s Secretary of Labor and Industry has announced the 2016 Statewide Average Weekly Wage.This figure serves as the basis for determining the maximum and minimum weekly Workers’ Compensation benefit rates in Pennsylvania. The figure has increased to $978 from the 2015 average of $951. This increase affects the weekly rates paid to workers who were injured on or after January 1, 2016.

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