Safety and OSHA News

Was employee doctor shopping for opioids? Court decides workers’ comp case

This injured worker left the care of his pain management doctor after having a disagreement about the amount of opioids he was taking. Can the worker get a new doctor under workers’ comp? 

C.K. Smith Jr. suffered a compensable shoulder injury while working for Goodall Buildings Inc. in Tennessee. In a settlement entered Aug. 5, 2009, Smith received lifetime medical benefits.

Later that month, Smith started seeing Dr. Jeffrey Hazlewood for chronic pain management.

A previous doctor had prescribed Smith 120 milligrams of morphine equivalent per day. Dr. Hazlewood increased that to 150 milligrams.

Some time later, due to new guidelines on pain management, Dr. Hazlewood began to have concerns about Smith becoming addicted. The new guidelines said if the patient is over 100 milligrams per day, the risk for adverse events, including overdose and death, go up substantially.

Around the same time, a Utilization Review of his medications recommended weaning Smith down on the dosage.

Dr. Hazlewood stated he was “about 80 or 90 percent concerned that [Smith] has a true opioid addiction.”

Smith had some success lowering his dosage to 112.5 milligrams per day (a 25% reduction). But Dr. Hazlewood said Smith was reluctant to reduce the dosage any further.

On Nov. 20, 2014, Smith met with Dr. Hazlewood for the last time. Smith said he had a new pain management doctor who was prescribing 120 milligrams.

Smith also requested a new panel of doctors from which to choose a pain management specialist under workers’ comp. Smith dropped the request, but in December 2016 he made the request again.

In January 2017 the trial court ruled Smith was entitled to a new panel of doctors. Goodall Buildings appealed.

‘Can hardly imagine a more fitting case’

The special workers’ compensation appeals panel of the Tennessee Supreme Court heard Smith’s case.

A portion of Tennessee law covers workers’ comp cases in which the injured employee is referred to a pain management specialist. It says with regard to “impairment, diagnosis, or prescribed treatment,” the “injured or disabled employee is not entitled to a second opinion.”

The three-judge panel noted that Tennessee lawmakers passed a bill adding the language to state law to combat “the abuse and overutilization of [Schedule II, III and IV] drugs.” The state senator who sponsored the bill said it was meant to prevent workers’ comp beneficiaries from “unfortunately becoming addicted and perhaps doing some doctor shopping.”

Smith quibbled over the phrase “second opinion,” saying that’s not what he was seeking, so the law didn’t apply to his case.

The judges said the law plainly applied to Smith. They wrote:

“In fact, we can hardly imagine a more fitting case to give effect to the text of [the law] than this one … after [Smith] refused to reduce his opioid intake, [Smith] left the care of Dr. Hazlewood to receive treatment from another doctor who prescribed a higher amount of opioids. Now, [Smith] is requesting a new physician entirely.”

For that reason, the three-judge panel of the Tennessee Supreme Court reversed the trial court’s decision and ruled Smith wasn’t entitled to a second opinion (a new panel of pain management doctors from which to choose).

(C.K. Smith, Jr. v. Goodall Buildings, Inc.Supreme Court of TN Special Workers’ Compensation Appeals Panel, No. M2017-01935-SC-R3-WC, 9/14/18)

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