Editorial: Hubachek on a “21st Century Solution to the Opioid Crisis” | Pt. 2

The following editorial by local claimant attorney Gregory J. Hubachek and D. Kirkhoff Brainard is the third of a three-part series on the opioid crisis. Below, Hubachek lays out his ideas for a modern approach to opioid drugs, including the concept of “integrative medicine.” Read part one of this series here and part two here.



Increased access to patient data now indicates that “psychosocial” issues represent the biggest single obstacle in controlling costs associated with workplace injury. Psychosocial issues refer to workers’ attitudes, beliefs and psychology – and specifically how these internal realities influence a worker’s ability to recover from injury and return to work.

Industry leaders in satisfactory claims resolution, including The Hartford, Nationwide, Starbucks, and Albertsons, have already embraced advocacy-based claims models to reduce the impact of psychosocial factors.

In this model, adjusters use screening tools to identify risk factors such addiction, obesity, marital or family problems, or unhappiness at work. Many employees are encouraged to work with a health coach, therapist or behavioral specialist; at-risk employees may be referred to a psychologist or counselor. [16]

A large-scale analysis covering $16 billion in claims by Lockton Analytics showed that 60 percent of workers’ comp costs are driven by claimants who experience fear and anxiety over the outcome of their claim and that “the average lost-time claim costs 3.5 times more when words such as ‘fear’ and ‘afraid’ are recorded in adjuster conversations.”

The 2016 Workers’ Compensation Benchmarking Study notes that text mining by The Hartford “found the presence of ‘fear’ in claim notes was more predictive of poor outcomes than a lumbar fusion surgery.” [17]

Access to mental health treatment

In less progressive environments, insurers continue to block access to mental health services by using the same types of bureaucratic roadblocks they employ to restrict access to alternative therapies.

The federal Mental Health Parity Act of 2008 mandates that insurers reimburse prescribed psychological, behavioral, and mental health treatments at the same levels as physical treatments. But, as the White House opioid crisis commission established by President Trump stated in its interim report released in March 2017:

“[T]here has long been a difference in how individuals with health insurance receive treatment and medication for physical health diagnoses versus mental health and SUD diagnoses […] Patients seeking addiction treatment, including MAT, are often subjected to dangerous fail-first protocols, a limited provider network, frequent prior authorization requirements, and claim denials without a transparent process.” [18]

The Louisiana Medical Treatment Guidelines (MTG) declare that all chronic pain patients should have psychological and/or psychiatric evaluations as well as recommending “psychosocial” therapy as an accompanying modality to other pain treatments.

While cognitive behavioral therapy would fall within the spirit of Sections 2131.5 and 2111.9 of the MTG, it is suggested that the Medical Advisory Council (MAC) provide specific guidelines for CBT which comport with recommendations of CDC, NIH and the LCPOA, which explicitly recommends either CBT or psychotherapy for all long-term opioid patients.

At the January 25th meeting of the Workers’ Compensation Advisory Council (WCAC), both OWCA Director Sheral Kellar and OWCA Medical Director Dr. Jason Picard confirmed that the Medical Advisory Council (MAC) is considering updates to the chronic pain section of the MTG to include treatment of injured workers who are formally diagnosed with opioid addiction.

During the aforementioned WCAC meeting there was a broad consensus that mental health treatment and an integrative approach to an overall treatment plan were the best practices in addressing diagnoses of opioid addiction. Consequently, there is certainly hope for injured employees and their physicians when it comes to authorization of alternative therapies.

In addition, yoga should similarly be included in the updated guidelines by the MAC.

The Insurance Racket: Profiting from the Opioid Crisis

The impact of opioid prescribing within the workers’ compensation population is largely unknown. A study of opioid prescribing in Ohio found that rates of prescribing opioids are similar in workers’ comp and non-workers’ compensation health systems.

Other insurance industry research, including the 2017 update to the WCRI Longer-Term Use of Opioids study, indicates that long-term opioid prescribing is declining in workers’ comp. This would be consistent with national prescribing trends, which appear to be steadily declining since their 2014-2015 peak.

The CDC’s “start low, go slow” dosage recommendation aligns broadly with the findings of a major Blue Cross Blue Shield study. The big insurer’s study found that high-dosage prescriptions were the most reliable indicator of a patient developing opioid use disorder. However, the BCBS study calls into question the CDC’s seven-day limit; longer-term opioid treatment at low dosages showed very little increase in addiction rates over short-term treatment at low dosages. [19]

A recent white paper examining the impact of the CDC opioid guidelines in worker’s compensation claims that 50 percent of prescriptions written for workers’ comp claimants are for pain and that 70 percent of those prescriptions are for opioids. In what has become almost boilerplate for insurer-funded white papers and research studies, the author acknowledges that no scientific link has been established between opioid prescribing in workers’ comp and opioid addiction and overdose deaths.

That disclaimer is usually followed by statements like this one, from the Mitchell white paper:

“Logically, if vast amounts of opioids are prescribed, a certain percentage of individuals will become addicted or abuse these medications. Of those that become addicted or abuse opioids, a certain number will overdose. Of those that do overdose, a certain number will die.” [20]

For an industry based on statistical analysis, this assertion seems alarmingly vague. Surely, this ‘certain number’ of workers’ comp claimants who are dying from opioid overdoses each year could be calculated by tabulating the number of drug-related death claims? Similarly, the number of injured employees who suffer from opioid addiction can be ascertained by how many patients are assigned with a formal addiction diagnosis.

As far as we know, there are no studies showing a valid statistical correlation between opioid prescribing and opioid addiction in the workers’ compensation population, let alone studies showing large numbers of overdose deaths due to overzealous prescribing practices.

Regardless, the insurance and business lobbies are using the outcry over opioid and heroin deaths to sell state governments on closed formularies and other restrictive medication limits as the ideal solution for solving the opioid crisis. This approach certainly is ideal from a cost-containment viewpoint. But it unfairly punishes America’s injured workers who struggle with debilitating chronic pain.

Playing the spread: how insurers shift costs to taxpayers and employers

Over the past few decades, American workers been progressively stripped of the rights granted them under the Great Bargain, with disastrous consequences for our nation’s middle class.

Thirty-three states have passed laws since 2003 cutting benefits to injured workers or making it harder for workers to apply for benefits. A ProPublica investigative report cites a study by UC-Davis health economist J. Paul Leigh “estimating that workers’ comp covered less than a third of injured workers’ medical costs and lost earnings in 2007 and that government programs like Social Security, Medicare and Medicaid had shelled out about $30 billion to fill part of the gap.” [21]

“The insurance industry and the Business Council falsely blame the claims of disabled workers so they can continue to increase profits by slashing benefits and shifting costs to taxpayer-funded programs instead of employer-paid insurance,” writes attorney Catherine Stanton. [22]

Stanton notes that while benefits as a percent of payroll declined in all but four states from 2010 to 2014, employer costs over the same period increased dramatically.

“Instead of using employers’ money to provide benefits for injured workers, insurance companies pay a host of businesses, including insurance medical examiners, nurse case managers, vocational rehabilitation companies and defense counsel, all of which profit from the system at the expense of workers and reap record profits for themselves.” [23]

In a recent article, industry researcher Peter Rousmaniere documents some of the more egregious ways in which pharmacy benefit management companies (PBMs), provider networks, and bill review services have “played the spread” between their costs and what they charge claims payers. Noting that recent rate filings by the National Council on Compensation Insurance have lowered insurers’ costs by 10 percent annually, Rousmaniere estimates that the overhead cost to employers for managing claims has grown at a rate of 9 percent a year since the 1990s. [24]

While industry lobbyists continue to successfully sell state legislators on closed formularies and other initiatives designed to reduce workers’ compensation benefits even further, insurance industry umbrella companies have been using practices such as these to rake in record profits:

  • Provider networks. According to settlement documents in a lawsuit filed by the Independent Physical Therapists of California, Rousmaniere writes, provider network One Call “overrode the expressed wishes of patients and  their doctors from higher to lower cost physical therapists” and “added charges for physical therapy for which the therapists themselves did not bill.”
  • Pharmacy benefit management companies. PBMs have employed a similar tactic, playing the spread between their cost for prescription drugs and what they charge employers for the same medication. By charging employers a percentage of an artificial benchmark called “average wholesale price,” while buying drugs at a much lower cost, PBMs have made huge profits.
  • Bill review vendors. Rousmaniere cites the example of a bill review vendor that made a profit of more than half a million dollars from a single employer for performing a routine computer task to adjust several thousand invoices to the state fee schedule. “Why did the insurer allow its bill review firm to price gouge?” Rousmaniere asks. “Did it receive an undisclosed part of the windfall?”

Making a profit on pain: closed pharmacy formularies

Rigging the system to avoid compliance with existing laws is one way insurers profit at the expense of both injured workers and employers. But why go to all that trouble when you can lobby for laws that relieve you from having to even engage in that chicanery?

Closed pharmacy formularies like the Official Disability Guidelines (ODG) are developed by insurer-funded institutes and sold to states as ‘evidence-based medicine’ that will enable states to “reduce the number of dangerous prescriptions, and to improve patient outcomes.” [25]

Part of the insurance industry sales pitch to states is that implementing closed formularies such as the ODG will significantly cut costs. Indeed, drug costs as a percentage of benefit spending appears to be declining across workers’ compensation populations. Although, as Joseph Paduda points out, the true cost of prescription drugs within the workers’ comp system is almost impossible to calculate precisely due to variables in reporting and data collection methodology. [26]

States that have adopted the ODG or other closed formularies do provide evidence that these restrictive measures cut costs. They also appear to have reduced the number of opioid prescriptions. But, as I detailed in a 2016 paper debunking the insurance industry’s hype over “evidence-based medicine,” the proponents of closed formularies have yet to provide valid evidence that they either improve patient outcomes or reduce opioid addiction. [27]

In fact, pain management advocates say, the arbitrary duration and dosage limits set by closed formularies force many chronic pain patients into a devil’s bargain. Either they can tough it out and “learn to live with the pain” – in which case many will never return to work or be able to function in society – or they can turn to illegal street drugs such as heroin, fentanyl, and other highly toxic substitutes.

Meanwhile, overdoses from illegal street drugs continue to rise. In Maryland, where Governor Larry Hogan declared a state of emergency in 2017, a state report released in June said that “opioid-related deaths in Maryland had nearly quadrupled since 2010, and deaths from fentanyl had increased 38-fold in the past decade.” [28]

Closed pharmacy formularies and other rigid and restrictive medication laws also force physicians to choose between caring for suffering patients and protecting their own status and reputation. “Fearing investigation or sanction, physicians caring for patients on long-term opioids face a dire choice,” writes Dr. Stephen Kertesz. “To involuntarily terminate prescriptions for patients who are otherwise stable, or to carry on as embattled, unprotected professionals, subject to bureaucratic muscle and public shaming from every direction.” [29]

Insurers have seized the narrative around the opioid crisis as a massive public relations opportunity to make more money for shareholders, while further threatening the health and security of America’s workers.

Louisiana’s Opioid Strategy Can Provide a Roadmap to the Future

The opioid crisis presents a unique opportunity for those of who serve as frontline advocates for the rights of America’s workers to reframe the discourse around workplace injury and chronic pain. The action we take (or fail to take now) will certainly affect the lives of those who depend on the workers’ compensation system to heal from injury and regain their livelihood. It can also help to improve the way we as a nation approach healthcare and wellness.

Closed formularies limit the options of physicians and patients and often force workers to live with avoidable pain and/or accept substitute medicines with equally high risk to a careful opioid regimen.

With ten states considering the adoption of closed pharmacy formularies in 2017, what happens next will have a major impact on our profession and on the workers whose wellbeing we fight for every day.

However, there is an alternative to the “closed” formulary model.  It is called an “open” formulary and includes guidelines for medications which are appropriate (and, therefore, should be automatically approved) for specific diagnoses.  As it pertains to medications which are not identified within the guideline for a specific diagnosis, there are utilization review processes which allow for consideration of such medications.

An “open” formulary combined with treatment guidelines that (a) encourage non-pharmacological alternative therapies; and (b) establish a system for prompt adjudication of the utilization review processes (for medications which are not identified within the guideline for a specific diagnosis) offers all stakeholders the opportunity to protect their respective interests.  I further suggest that this approach comports with the interdisciplinary approach encouraged by Louisiana’s MTG.

Despite all of the negative news, there are encouraging trends we can leverage to create people-positive, win-win solutions to the opioid crisis. Many states have their requirements for physician education and have strengthened laws mandating adherence to PDMPs.

The recommendations of the Louisiana Commission on Preventing Opioid Abuse and the planned updates to the state’s Medication Treatment Guidelines can become a model for other states to follow in implementing an evidence-based, integrative medicine framework that treats injured workers using primarily non-opioid therapies.

In Rhode Island, one of the first states to adopt the CDC guidelines, Governor Gina Raimondo recently signed into law an amendment requiring insurers to cover non-opioid based chiropractic and osteopathic treatments for pain patients with substance-use disorders.

Specific recommendations for a sustainable solution

It’s time our state governments step up to the plate and ensure that the evidence-based, integrative approach to pain management recommended by the CDC, NIH, and other governmental and non-governmental bodies be made available both as alternatives and adjuncts to opioid drug therapy.

Key alternative therapies include:

  • acupuncture
  • chiropractic
  • osteopathic manipulation
  • massage therapy
  • biofeedback
  • yoga
  • physical therapy
  • relaxation therapy
  • CBT

Our state and federal governments need to ensure that these therapies are fully funded by insurers, as well as using the force of law to punish insurers and networks who attempt to sidestep the law and restrict access to these therapies.

Mental health services, including psychiatric counseling, should be mandatory for high-risk patients and available (covered by the insurer) for all injured workers who are prescribed an opioid medication.

  • 2 visits with a psychologist or psychiatrist; plus
  • 24 visits with a social worker/counselor/behavioral therapist

In addition, detox treatment for injured workers who are formally diagnosed with opioid addiction needs to be included in state medical treatment guidelines, made available to injured workers, and fully funded by insurers.

Federal and state governments should follow the recommendations of President Trump’s opioid crisis commission and aggressively enforce the Mental Health Parity Act by penalizing insurers and networks that fail to comply and, further, by publicly censuring insurers who break the law.



[16] “Psychosocial,” 7.

[17] Peter Rousmaniere and Rachel Fikes, “How to Overcome Psychosocial Roadblocks: Claims Advocacy’s Biggest Opportunity,” Rising Medical Solutions (2017): 3.

[18] Commission on Combating Drug Addiction and the Opioid Crisis, “Commission Interim Report,” March 29, 2017, https://www.whitehouse.gov/sites/whitehouse.gov/files/ondcp/commission-interim-report.pdf.

[19] Blue Cross Blue Shield, “America’s opioid epidemic and its effect on the nation’s commercially-insured population,” June 29, 2017, https://www.bcbs.com/the-health-of-america/reports/americas-opioid-epidemic-and-its-effect-on-the-nations-commercially-insured.

[20] Mitch Freeman, “CDC Opioid Prescribing Guidelines: Study and Impact of Guidelines on the Workers’ Compensation Industry,” Mitchell International, 2017.

[21] Michael Grabell and Howard Berkes, “Inside Corporate America’s Campaign to Ditch Workers’ Comp,” ProPublica, October 14, 2015, https://www.propublica.org/article/inside-corporate-americas-plan-to-ditch-workers-comp

[22] Catherine Stanton, “A Dismantling of the Grand Bargain That Created Workers’ Compensation,” Iowa Workers Compensation Law website, January 2, 2017, https://iowaworkcomplaw.com/2017/01/02/a-dismantling-of-the-grand-bargain-that-created-workers-compensation/.

[23] Stanton, “Grand Bargain.”

[24] Peter Rousmaniere, “2018: The Year to Reform Vendor Contracting,” January 3, 2018, https://www.workerscompensation.com/

[25] ODG, “Montana to Adopt ODG Drug Formulary,” Work Loss Data Institute, October 5, 2017, http://www.worklossdata.com/montana-to-adopt-odg-formulary.html.

[26] Joseph Paduda, “Prescription Drug Management in Workers Compensation: The Twelfth Annual Survey,” Workers Compensation 2016 Issues Report (2016): 24-29.

[27] Hubachek, “A Bipartisan Prescription.”

[28] Achenbach and Keating, “In just one year.”

[29] Stefan G. Kertesz and Adam J. Gordon, “Strict limits on opioid prescribing risk the ‘inhumane treatment’ of pain patients,” STAT, February 24, 2017, https://www.statnews.com/2017/02/24/opioids-prescribing-limits-pain-patients.


Image Credit: Women’s Running


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