The New York Workers’ Compensation Board recently issued Subject Number 046-892 detailing how to request — and how to address carriers’ requests — to reduce opioid medications.

The Board updated form RFA-2 by adding Box “K” under “Medical Issues” to request a hearing on “opioid weaning under Non-Acute Pain Guidelines.”

More importantly, the Board made significant changes to the hearing process. In the past, law judges significantly delayed a carrier’s ability to pursue opioid weaning by allowing 60 to 120 days for treating physicians to respond to independent medical examinations (IMEs) — or by refusing to make any decision.

The new Subject Number establishes two significant protocols of which carriers should be aware. First, upon receipt of the carrier’s RFA-2 (including IME), the Board will notify the claimant’s treating physician that a hearing will be scheduled within 45 days and the treating physician is directed to comment on the IME’s weaning recommendations. If the treating physician fails to respond, the carrier may be entitled to automatic weaning if the judge determines the IME appropriately sets forth the reasons why the claimant’s opioid usage is non-compliant with the Non-Acute Pain Guidelines. If the treating physician responds, the judge must direct litigation on the issue.

Second, after all evidence is submitted, the law judge must decide whether there is: insufficient proof from the treating physician of the need for ongoing opioid medication and the claimant should be immediately weaned; insufficient proof of the need for ongoing prescription of opioid medication and enrollment in an addiction treatment program should be directed; or demonstration from the claimant’s physician that opioid use was “effective in terms of improved function and reduction of pain” and weaning is unnecessary.

In light of this Subject Number, we recommend carriers adopt the following strategies:

• Identify and isolate claims in which medication usage exceeds $500-$1000 per month; the claimant receives prescriptions from multiple providers; the claimant is being prescribed brand-name medication; and the claimant has been receiving prescription for opioid medications from an orthopedic surgeon or family physician for more than six months. Once a claim is identified, we recommend involving nurse case managers and defense counsel to determine the appropriate timing to obtain an IME evaluation.

• Obtain an IME from a pain management specialist. This is of critical importance. Goldberg Segalla has partnered with IME vendors to provide dedicated and reliable pain management specialists across New York State to address opioid issues, so please reach out to us when selecting the pain management specialist. Also note that a cover letter to the IME doctor should be drafted by defense counsel for several reasons. For one, presenting “leading” questions to the IME must be avoided, otherwise there is a risk of preclusion. Additionally, the IME must specifically address the claimant’s prescription history, his/her objective and subjective complaints, and recommended future treatment, including a weaning program. The Board may not schedule a hearing to reduce opioids if the IME does not contain sufficient information.

• Upon receipt of the IME report, refer the IME to defense counsel to determine whether the report meets the Board requirements to prove that the claimant’s medications fall outside the Guidelines.

• File RFA-2, checking box “K” and referencing document identification number or date of IME report in the Board file.

For more information about how Subject Number 046-892 may affect present or future claims, please contact:

• Debra L. Doby (914.798.5121; ddoby@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Workers’ Compensation Practice Group