Challenging Opioid Prescriptions

December 2015

By Jeffrey R. Gibellina

In a December 18, 2015 report, the Centers for Disease Control and Prevention (the "Centers"), announced that "since 2000, the rate of deaths from drug overdoses has increased 137%, including a 200% increase of overdose deaths involving opioids." The report defined "opioids" to "include drugs such as morphine, oxycodone, hydrocodone...fentanyl, and tramadol." Indeed, there has been a "15-year increase in overdose deaths involving prescription opioid pain relievers..."

The need to "encourage (safe) prescribing of opioid pain relievers..." is urgent according to the Centers. While promoting safer practices is laudable, there is an immediate need, particularly in Illinois Workers' Compensation, for a method of attacking the scourge more directly. Business and insurance should be aware that the Illinois Workers' Compensation Act does offer a means by which an employer can contest prescription opioids. Under Section 19(d) of the Act and Section 7110.40 of the Rules Governing Practice Before the Commission, an employer can ask the Commission to decide whether a worker, who has been prescribed opioids, is engaged in injurious practices tending to imperil or retard her recovery or, alternatively, whether the worker who refuses a detoxification program is acting unreasonably.

An Illinois employer attempted to actualize Section 19(d) and Rule 7110.40 in the case of Colleen M. Oberlander v. University of Chicago (2014). Unfortunately, the Illinois Workers' Compensation Commission (hereafter the Commission) held that petitioner did not need to "de-escalate an opioid regimen." The Commission focused on medical evidence from petitioner's primary treater reflecting that should she undertake the de-escalation, she would suffer a "severe reaction," possibly resulting in a heart attack. Another expert engaged by petitioner, testified that he thought that opioid detoxification was merely experimental and, at best, would result in intolerable pain.

Respondent's expert testified petitioner's opioid dependency was destined to lead only to greater dysfunction and development of opioid-induced "hyperalgesia" (an increased sensitivity to pain). This expert also felt that should petitioner undertake de-escalation pursuant to a "strictly supervised program," her functionality might improve.

In holding that petitioner need not reduce her opioids or their dosages, the Commission reflected that de-escalation overall was not "reasonably essential to promote (petitioner's) recovery."

The Commission also upheld penalties as Respondent had unilaterally suspended benefits due to petitioner's failure to undergo de-escalation. That action constituted bad faith according to the Commission, as the opinions on which the employer relied were, in fact, qualified by the very expert who rendered them. That expert admitted that whether petitioner would benefit from any such program was "speculative."

Despite the unfavorable ruling, Oberlander teaches important lessons to employers concerned about the levels of a worker's opioid usage. First and foremost is the principal that the focus of any challenge to opioids should be whether they threaten petitioner's health. Secondly, the medical proposition of whether the opioids prescribed were intended to treat conditions other than those presented by the injury (for example, cancer) should be investigated. Other evidence to explore bears on whether there are alternative methods of achieving pain relief for a petitioner.

But in the final analysis, Oberlander demonstrates that without substantial evidence of dire health consequences resulting from continued opioid use, the Commission will give the worker, and her treating physician, wide latitude in following a course of care, even including large quantities of prescription medication.