Friday F.A.Q. “What can be done to address opioid overuse or abuse by claimants?” 

Tashia Rasul, Esq. While the Medical Treatment Guidelines (MTG) governing the treatment of non-acute pain allows for the use of opioids only in certain circumstances, we are still seeing an abundance of claims where the prescribing doctor fails to comply with the stringent requirements of the MTG.  In October, 2016, the Board announced a new procedure that allows employers to have the issue addressed by the Board in an effective manner. Pursuant to Subject No.  046-892, employers can request a hearing to address whether a claimant’s use of opioids is medically necessary or whether weaning is warranted.  In order to obtain a hearing, employers must file an RFA-2, checking off the box designated for opioid weaning.  The caveat is, however, the employer must file an IME or records review report that discusses a weaning program and goals with the RFA-2.  The claimant will then have the opportunity to respond to the IME or Records Review, and his doctor must indicate the following:

A review of the claimant’s use of opioids. 

A list of the claimant’s current medications; and

A review of whether the opioid medication is in compliance with the Non-Acute Pain Medical Treatment Guidelines. 

The provider can also provide a comment on the weaning resources identified in the IME and/or provide alternative resources. 

The claimant’s doctor’s report must be filed by the date of the hearing that is scheduled in response to the RFA-2, which is within 45 days of filing of the RFA-2.  The claimant can choose to cross-examine the IME doctor prior to the scheduled hearing, and the carrier can make a request to cross-examine the claimant’s doctor at the hearing. 

The Board’s policy also sets forth the rulings that the Law Judge must make with regards to opioid weaning.  The Law Judge must make one of the following determinations:

There is insufficient proof of the need for continued usage and claimant must be weaned, or

There is insufficient proof of the need for continued usage and the claimant must be weaned and be enrolled in an addiction program, or

the opioid use is effective and weaning is unnecessary. 

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Tashia Rasul is an Partner at Lois LLC where she defends employers and carriers in New York workers’ compensation claims and leads the Construction Defense Practice team.  Tashia chairs the Firm's Diversity Committee and is active in the national Alliance of Women in Workers' Compensation.  She can be reached directly at trasul@loisllc.com or 201-880-7213. 

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