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Workers' comp with a wrinkle

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By Merilee Dannemann

The Workers’ Compensation Administration is suggesting yet another attempt to change the statutory language relating to workers who get injured while using drugs or alcohol.  Meanwhile, the workers’ compensation community is more and more concerned about workers who get addicted to drugs as a result of their injuries.
The question of whether benefits should be barred for workers who were intoxicated has been a political hot potato for decades. The public is outraged when a worker who got hurt while drunk or stoned gets workers’ compensation benefits. Prior to the 1990 reform, the law said that if drugs or alcohol were the sole cause of the accident, the claim could be thrown out, but there was no consequence if intoxication was a partial factor.  
The 1990 Workers’ Compensation Task Force, which overhauled the statute, battled over the issue but could not reach agreement. Labor leaders argued that a worker’s family should not suffer because the worker made a mistake. The task force left the old provision in place and created a follow-up task force, which struggled valiantly and arrived at a recommendation that nobody else liked, so it was never even introduced in legislation.
In 2001, an amendment was enacted that was supposed to say that if drug or alcohol use was a partial factor, the worker would lose 10 percent of benefits. The bill came from the Gov. Gary Johnson-era Workers’ Compensation Advisory Council.  Their intention was to base the penalty simply on evidence of use of drugs or alcohol, with no need to prove causation.
On its way through the process, the language was badly garbled. The enacted language led to a confusing standard of partial causation and lots of litigation. It has been a problem ever since. At a recent meeting, the WCA suggested to a new Advisory Council that this should be revisited.
Meanwhile, the industry is deeply worried that injured workers are turning into pill addicts in record numbers. It was on everyone’s lips at the recent annual conference of the New Mexico Workers’ Compensation Association.
Drug testing has long been a part of the system. As a sign of the times, the testing companies are offering tests for new kinds of deviant behavior. When a workers’ compensation patient has a prescribed dose of opioid painkillers, they can test that the patient is not supplementing that dose with cocaine, other prescription meds, or anything else. They can also make sure that the patient is taking the prescribed dose and not less – in other words, that he’s not selling his pills on the street.
Medical evidence shows that non-addictive, less expensive drugs like Tylenol are often just as effective, but claims adjusters complain that they can’t stop doctors from writing prescriptions for opioids. The talk in the conference hallway is that doctors are lazy, or maybe the patients demand these pills and doctors comply because it’s easier than spending time educating patients about the risks of addiction. I argue that maybe it’s because the fee schedule doesn’t pay the docs to spend time doing this.     
The workers’ compensation system can’t afford to push doctors around. It is said to be harder than ever to find doctors willing to take workers’ compensation cases. The drug issue is just part of the problem. Doctors can’t stand the extra paperwork, long delays for insurance approvals, and the threat of having to testify in litigation.
It’s as if we hadn’t had 22 years since our famous big reform to figure out how to make the physician’s role in this difficult system less frustrating.  
Contact Merilee Dannemann at www.triplespacedagain.com.