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Opioid death liability falling on employers

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Opioid death liability falling on employers

Several state appellate courts have held that employers and insurers are financially accountable for overdose deaths tied to opioid pain medications prescribed for injured workers, raising concerns that more such rulings could follow.

Similar rulings could occur in other states because of a nationwide increase in prescribing highly addictive pain drugs for workers compensation claimants, said Rita Nowak, vp of commercial lines and workers comp for the Property Casualty Insurers Assn. of America in Des Plaines, Ill.

“With these cases coming to fruition, I think it's a disturbing trend,” Ms. Nowak said. “The concern is we are going to see more decisions like this.”

Recent rulings in Pennsylvania, Tennessee and Texas show that workers comp payers will be held responsible for harmful outcomes, such as addiction and death, due to prescription narcotics, Ms. Nowak said.

In one case, Texas' 13th District Court of Appeals endorsed a novel theory on drug side effects that increases workers comp payers' exposure, said Dana M. Gannon a partner and workers comp expert in the Houston office of Smith & Carr P.C.

Similar rulings have been made in Pennsylvania and Tennessee (see related story).

In the May 10 ruling in Commerce & Industry Insurance Co. vs. Kimberly Ferguson-Stewart et al., the Texas appellate court ruled that workers comp benefits must be awarded in the death of Bruce Mason Stewart, even though a toxicology report showed his blood contained a lethal amount of hydrocodone that required ingesting about 20 pills.

Mr. Stewart's treating physician had prescribed consuming just one pill every eight hours, so the Texas Division of Workers' Compensation ruled his death resulted from failing to comply with his doctor's instructions—not the 2004 work injury that led his doctor to prescribe the hydrocodone.

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But on appeal, a trial jury concluded that the claimant's demise resulted from his treatment and that his spouse is entitled to death benefits.

The appellate court affirmed, citing expert testimony that Mr. Stewart may have consumed more pills than intended because of a possible drug side effect—that the drug may have caused disorientation and memory loss that caused him to forget how many pills he had consumed.

The testimony “gives rise to more than a mere surmise or suspicion that a cause other than intentional failure to comply with doctor's instructions was a proximate cause of Stewart's overdose,” the Texas appellate court ruled.

However, a toxicology report showed that Mr. Stewart's blood also contained a muscle relaxant and marijuana.

“He overdosed not only on his own medication, but also took his wife's medication,” said Ms. Gannon, who defended the insurer in the case, a unit of American International Group Inc. “I don't know what an insurance carrier or employer can really do (to defend against) people overusing medications now that the court of appeals has said that this death is compensable.”

While some observers fault courts for broadening employer and insurer responsibility in such cases, others say appropriate medical care is the issue.

“I don't think the issue these court cases have focused on is really the main issue,” said Dr. Gary Franklin, the medical director of Washington State's Department of Labor and Industries' who is known nationwide for his groundbreaking research into opioid-related worker deaths.

The main problem is whether “universal precautions” called for in medical guidelines are implemented to minimize the risk of bad outcomes when patients are prescribed opioids, which include screening patients for prior substance abuse problems, Dr. Franklin said.

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Data shows that someone on opioids for about three months already is getting dependent and developing “severe tolerance” of the drugs, especially when escalating their dosage, Dr. Franklin said.

“That is the issue—not whether the doctor is giving them more and more or the patient is taking more and more,” he said. “If (treatment was) initiated in that direction, it may be that the patient doesn't have a lot of control over it. So I wouldn't put too much (emphasis) on whether the drugs made someone confused and that is why they took more. I think that is a little off the mark.”

The focus on pain medications is a symptom not the problem, said Jon L. Gelman, a workers comp expert and national spokesman on occupational safety and health in Wayne, N.J., for Thomson Reuters Inc.

He faults the medical-delivery system and workers comp payers for making pain medications easily available rather than providing more extensive care, which may be more costly.

Once such cases become legally complicated and potentially costly, payers shift the blame, as happened in the Texas case, Mr. Gelman said.

“They tried to use an intervening, superseding event, which was noncompliance with the doctor's instructions,” Mr. Gelman said. But courts have been rejecting such arguments because they “are so far from the intent of the crafters of workers compensation acts.”

Officials could not be reached on whether an appeal of the ruling is planned.

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    While some state appellate courts recently have held that workers compensation payers are accountable for worker deaths from prescription drug overdoses, cases with similar legal considerations reach back decades.