Keefe, Campbell & Associates, LLC

Editor’s comment: While this ruling isn’t a major change in Illinois WC law, we continue to cringe about what is happening in the work comp arena in our fair state.

In Szarek v. Illinois Workers’ Compensation Commission, (No. 3-08-0530WC October 29, 2009), claimant, an apprentice carpenter, was seriously injured after falling through a floor opening on a second floor of a house he was helping to build. His employer contended marijuana use, detected via urinalysis, was the proximate cause of fall. The decision indicates the employee was winding in a chalk line when he fell. Other than urinalysis, the majority ruled there was

- No evidence … he was so intoxicated he had abandoned his employment, nor
- Was marijuana use was sole cause of fall, and
- Witness statements establish employee was performing his job duties at time of accident.

The court did rule the Commission’s award of penalties and fees was reversed as any “reasonable person” could have concluded claimant might not be entitled to workers’ compensation benefits. We are confident this won’t alleviate the onus of paying lifetime medical and lost time benefits. We also point out this is the third reported decision in the last 12 months where our reviewing courts have awarded benefits to someone who admittedly and unquestionably committed a crime.

In our view, based on the evidence outlined in the ruling, this claim would have been compensable under traditional Illinois’ legal analyses but it was handled by one of the most misguided TPA’s of Illinois TPA’s. In our view, the TPA had their defense counsels do any number of unusual things in spending literally tens of thousands of dollars to lose this claim over the nine years it was unsuccessfully litigated. If you have claims involving intoxication or impairment and want real answers on effectively defending them, send a reply.

Please note this ruling continues to implement what we feel is a contradictory and paradoxical analysis of allowing substantial seven-figure workers’ comp benefits despite an injury under the undisputed influence of drugs or alcohol. One legal device to find such an injury compensable is indicated to be the claim the impaired miscreant did not “abandon employment.” We note this same legal concept was recently proposed in new legislation.

We ask the rhetorical question of how a worker can have a work injury if they have abandoned employment? If the worker abandoned employment while stoned or drunk, they aren’t on the job any more, correct? If they aren’t on the job, they can’t ever have a work injury so how does such language add anything to this analysis? It is our academic view the paradox doesn’t add anything to the compensability of such a situation and it guarantees benefits to any intoxicated or stoned worker who remains on the job after becoming drunk or stoned.

While we feel this case would have been compensable for a number of reasons including possible OSHA violations, we feel legislation is the best way to address workplace intoxication and impairment. Please also understand an impaired worker is a health and safety risk, not just to themselves but to all workers around him or her. We also urge all Illinois and U.S. employers to learn from this lesson and implement drug and alcohol-free workplace protocols. Please let us know your thoughts and comments.

Editor’s comment: We had a reader ask us a very important question about using this database. As we advised, the PMP is authorized the Illinois Controlled Substances Act and applies to Schedule II, III, IV, and V prescription medications. The PMP Prescription Information Library (PIL) data base contains all Schedule 2, 3, 4 and 5 prescriptions dispensed by Illinois retail pharmacies. All retail pharmacies that dispense scheduled drugs are required to report their scripts to the PIL on a weekly basis. The database in the PIL updated is updated on Friday of each week.

The PIL database is most useful for detecting and preventing “doctor-shopping.” It is also helpful if you note a particular claimant is getting more narcotics than they could possibly or safely ingest by themselves and therefore may be illegally reselling the extra drugs for cash. After a provider’s registration is approved, the provider can log on and view the last 6 months of controlled substance prescriptions for a given patient. If a physician sees a pattern of excessive use of controlled substances, violations of narcotic contracts, or multiple providers they can change the treatment plan as well as alert other providers who may also prescribing controlled substances to the patient. The doctor does not have to be from Illinois to have access—they have to simply apply and send their bona fides to the Department for the registration and approval process. Providers who been given a password access to the system by the Illinois Department of Human Services can access patient information by getting logged into the website www.ilpmp.org.

The reader’s question was: You indicate IME doctors should routinely run this prescription check as part of the services included in a solid exam. You also indicate in order for the information to be shared there needs to be HIPAA authorization signed by the claimant. In many cases we are finding claimants refuse to sign the HIPAA releases and when getting them from Petitioner’s attorneys they are exclusively for specific doctors, other care-givers and dates. How can we get the PMP info from the IME doctor if we don’t have a signed release?

The answer is: According to the PIL (Prescription Information Library maintained by PMP) because the disclosures of information to the PIL by pharmacies are mandated by law and not discretionary, the patient does not need to be informed of the disclosure, and does not need to consent to it. That language is taken directly from the PMP website.

Therefore, any licensed doctor or pharmacist can review the website and get the information for you. They don’t need a HIPAA release for that purpose.

As a best practice, we feel the IME doc should have a HIPAA release signed to disclose it to you. Because it is a workers’ comp claim, technically it should fall under the U.S. Department of Labor’s workers’ comp exception to HIPAA but we still encourage folks to have a release signed, if possible. Thereafter, once you or anyone in your company has the results of the PIL from any doc—that information cannot then be redisclosed, openly discussed or used by anyone outside the HIPAA circle without a HIPAA release protecting you when it is redisclosed.

If you have any questions or comments, please forward them to our resident Blog Administrator, Arik D. Hetue, J.D. who can be reached at ahetue@keefe-law.com or post them later today on our award-winning blog at www.keefe-law.com/blog.

Editor’s comment: Illinois’ Prescription Monitoring Program (PMP) presents new web technology that will help change the face of managing Illinois Workers’ Compensation system.

At the 17th Annual SafeWorks Illinois Work Injury Prevention and Control Strategies conference held in Champaign, IL last week on October 29, 2009, one of the highlights for many conference goers were the discussions on the various new technologies available to help facilitate the management of workers compensation claim to maximize recovery. Dr. David Fletcher spoke about the new Illinois Prescription Monitoring Program which allows any licensed physician or pharmacist to determine if a patient is getting narcotic prescriptions from multiple providers and even determine if an injured worker may have received narcotics pain medication prior to a work injury. The Illinois Prescription Monitoring Program is open only to licensed Pharmacists and Physicians in the state of Illinois—for claims adjusters and risk managers who want to know what is on the database, you need to run the inquiry through an OccDoc or IME physician.

So far, this new technology and related website has seemingly stayed under the claims radar and not widely know even though it provides valuable information that improves patient care for injured workers and helps prevent substance abuse and diversion of narcotics. The PMP is authorized by 720 ILCS 570/321, known as the Illinois Controlled Substances Act and applies to Schedule II, III, IV, and V prescription medications. The PMP Prescription Information Library (PIL) data base contains all Schedule 2, 3, 4 and 5 prescriptions dispensed by Illinois retail pharmacies. All retail pharmacies that dispense scheduled drugs are required to report their scripts to the PIL on a weekly basis. The database in the PIL updated is updated on Friday of each week.

IME doctors need to add this quick and simple web search to their day-to-day evaluation protocols

Accessing this new technology should be part of every independent medical examination that is conducted for any Illinois workers’ comp claimant. We don’t feel an IME physician can do a solid job if he/she doesn’t readily access this simple website to confirm the patient is taking only those drugs prescribed for the condition. Both sides of the WC bar want to know the patient is taking only what they are supposed to be taking and any surprises eliminated. We suggest this web search be added as a normal course of IME practice and put into every IME report.

In states that have the web service, a routine PMP search should also be part of all OccHealth care

As part of fitness for duty evaluations, some occupational medicine practitioners are using the site to check new hires that are seen for post job offer physical exams to determine the truthfulness of the responses to post job offer questionnaires about current drug use. In all OccHealth settings, a PMP search should be de rigueur—we assert the OccHealth doc can’t do solid job without insuring accurate review of a patient’s use of scheduled drugs for the last six months.

We also assume every ER in the State of Illinois should access this site as part a protocol for any patient that is prescribed narcotics or other controlled substances.

Attacking doctor-shopping and illegal prescription drug reselling for WC claimants

The PIL database is most useful for detecting and preventing “doctor-shopping.” It is also helpful if you note a particular claimant is getting more narcotics than they could possibly or safely ingest by themselves and therefore may be illegally reselling the extra drugs for cash.

After a provider’s registration is approved, the provider can log on and view the last 6 months of controlled substance prescriptions for a given patient. If a physician sees a pattern of excessive use of controlled substances, violations of narcotic contracts, or multiple providers they can change the treatment plan as well as alert other providers who may also prescribing controlled substances to the patient. Providers who been given a password access to the system by the Illinois Department of Human Services can access patient information by getting logged into the website www.ilpmp.org.

Providers input the patient’s first and last name and date of birth (DOB). The database then kicks out a chart listing any narcotic prescriptions, listing most recent dates first. The chart lists the number of pills dispensed, the pharmacy which pills were dispensed from, and the provider who prescribed the medication.

HIPAA and all confidentiality and disclosure provisions of Illinois Law cover the information contained in this database. All users must fully comply with HIPAA Privacy Rule Requirements when using this system. Access to this database is yet another reason we recommend all workers’ comp accident or claim investigations start with both an accident reporting form and execution of a HIPAA-compliant release. If you need a HIPAA-compliant release, send a reply and we will email it to you.

As of November 2008, 38 states had enacted legislation that required prescription drug monitoring programs: 32 of those programs are currently operating. In FY2005, the Federal Department of Justice Harold Rogers Prescription Drug Monitoring Program received $10 million in funding and Illinois was one of 22 states awarded grants to start a PMP. The Illinois PMP went on-line in January 2008.

According to the PIL (Prescription Information Library maintained by PMP) because the disclosures of information to the PIL by pharmacies are mandated by law and not discretionary, the patient does not need to be informed of the disclosure, and does not need to consent to it. The PMP has been helpful in bringing to light addiction and drug-seeking issues in patients who are requesting narcotics at levels that appear out of sync with the level of physical findings on exam and diagnosis. Examples include one recent soft tissue injury patient found to be receiving narcotics from another local provider, who it turns out was managing the patient for a chronic pain issue which the patient failed to mention. In addition this patient had signed a narcotics contract with the other provider stating she would not receive narcotics from any other providers.

Another patient was found to have ‘made the rounds’ of local providers, including dentists, receiving multiple narcotics prescriptions. When challenged with this information and told her physician would no longer dispense or write narcotics prescriptions, the patient abruptly dropped her workers’ compensation claim and never returned.

Another solid feature is the physician’s ability to learn the prescriptions have been written with his/her DEA number. This allows the physician to run a report displaying all scheduled drugs recently prescribed. This feature allows the physician to determine if someone is stealing scripts from their office or impersonating the doctor to fraudulently use their DEA #. It also allows the physician to monitor and detect pharmacy errors with this feature.

Recent discussions and presentations about PMP were presented by Dr. David Fletcher at REBEX (Regional RIMS conference in Wheeling) and the 17th Annual Safeworks Illinois Work Injury conference where the response to learning about this new technology was overwhelming positive. We are also advised the folks at the Department of Health and Human Services liked the public relations impact. They heard the news on the topic and have contacted Safeworks Illinois about it. They are applying for additional federal grants to expand the program, which is already saving lives and money by decreasing inappropriate narcotic prescriptions and putting unscrupulous doctors on notice that they are being closely monitored.

In summary, the PMP has changed the face of Illinois workers’ compensation case management with the ability to access historical information on controlled substances and assists with the proper management of chronic pain patients. For more information on the Illinois Prescription Monitoring Program, contact: Stan Tylman, 401 North Fourth Street, Springfield IL, 62702 Phone: 217 524-9074; Fax 217 557-7975

Comments and questions about PMP can be directed to Dr. Fletcher at http://www.safeworksillinois.com/contact-safeworks.html.

Editor’s comment: For our Illinois readers who manage Illinois employees and facilities we are always stunned and amazed how many employers cannot commit to drug and alcohol-free workplaces because it means they personally can’t drink at lunch or on the job. We point out the Illinois WC system creates a whopping incentive not to have drunks or impaired folks on your premises. One accident caused by or to a drunk or impaired worker can cost literally hundreds of thousands or even millions of dollars. Our rule is anyone caught drinking alcohol or doing any legal or illegal drug which causes impairment during work hours is counseled and given the choice to elect EAP (Employee Assistance) or termination.

Please remember the Illinois WC Act and its implementation by our Commission and reviewing courts is wildly unpredictable in this state. In Paganelis v. Industrial Commission, the Supreme Court denied benefits to a driver who was .238 drunk and was seriously injured in a crash. But later rulings sometimes “open the door” by not aggressively penalizing drunks and drug addicts in the Illinois workplace—one awful IWCC ruling actually rewarded an amputee who was drunk and lost his arm but received benefits in a Commission decision finding he was a “functioning alcoholic” and therefore wasn’t injured due to his impaired state. We assure you every drunk and drug addict makes the same argument when bad things happen to them and those around them in the workplace. We assure all of our readers, your tolerance level for anyone being impaired on your work floor should be aggressive—don’t let a so-called “functioning” drunk or drug abuser put you out of business when they injure themselves or others and you have to pay them thousands in medical bills, lost time and permanency.

Drug-Free Work Week is the perfect time to launch a Drug-Free Workplace Program if your organization does not already have one. Such programs are complements to other initiatives that help protect worker safety and health. To learn more about them, visit DOL’s Working Partners Web site at http://www.dol.gov/workingpartners/. In particular, the site’s Drug-Free Workplace Advisor Program Builder offers detailed guidance on how to develop a Drug-Free Workplace Program, starting with the first step: a written policy.

If your organization already has a Drug-Free Workplace Program, Drug-Free Work Week is a logical time to ensure the program is adequate to meet current needs and to remind employees about its important role in keeping them safe on the job. One way to do this is to distribute a new copy of your drug-free workplace policy, along with a positive message about valuing health and safety, and then provide an opportunity for them to ask questions about it.

To achieve a drug-free workplace, it is critical that an organization educate its workers about the nature of alcohol and drug use and its negative impact on workplace safety and productivity. Drug-Free Work Week is a natural time to step up such efforts through training sessions, guest speakers or brown-bag lunches. Working Partners offers more information on employee training, including ready-to-use training materials. New resources available this year include Fast Facts (an informational card for employees about their role in keeping their worksite drug and alcohol free) and a series of five Tool Box Talks (brief speeches intended for delivery by foreman on construction or factory worksites).

Some observers estimate workplace substance addiction annually costs U.S. employers as much as $250 billion and substance-related deaths are equal to a jumbo jet plane crash every day. In the workers’ compensation arena substance abusers register 50% of all claims and five times more claims than average. This is based on statistics from the National Council on Compensation Insurance.

If you have thoughts, comments or questions on Drug-Free Work Week or implementing a drug and alcohol-free program, send a reply.