Prescription drug abuse is a major concern in the workers’ comp system. Here we examine this concern in the light of two recent cases.

1. Opioid Overdose Epidemic—a Major
ConCern in the Workers’
Compensation System
Prescription drug abuse is a
major concern in the
workers’ comp system.
Here we examine this
concern in the light of two
recent cases.
MOS Medical Record Reviews
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Tulsa, OK 74133

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When it comes to fair claims settlement by an insurance company, medical peer review is a
very significant process. This helps determine whether the treatments provided to the patient
were medically necessary, and whether the claim is a legitimate one. In many cases, a reliable
peer review helps insurers avoid paying huge dollar amounts to undeserving people.
A Case of Employee Conduct Creating an “Intervening” Cause of Death
A recent example wherein medical peer review and medical claims review had an important
role to play is that of Charles Kilburn, a trim carpenter who was involved in a motor vehicle
accident. The accident occurred in 2008, which resulted in fractures to the vertebrae in his
neck and disc herniations in his lower back. Court documents show that Kilburn underwent
surgery to repair his injuries but continued to experience difficulty walking, and also back
pain. Though his doctors recommended further surgery, the insurance company denied it after
a peer review by three physicians. They also denied a recommendation for epidural steroid
injections. 0
Kilburn was referred to a pain management clinic and restricted from returning to work. In
January 2010, a pain management specialist found that Kilburn was taking extra opioids
convinced that the prescribed medicine was no longer effective. The specialist recommended
a program to wean Kilburn from the opioid medication, and he did agree to it.
Unfortunately, Kilburn died later that month from acute oxycodone toxicity with contributory
causes of hypertension, and alcohol and tobacco use. Kilburn’s widow was found ineligible
by the Tennessee Supreme Court to receive workers’ comp death benefits because her
husband’s death was caused by conduct not related to his work accident.
Kilburn’s wife filed a claim asserting that she had met her burden of proof to show that her
husband’s death was a direct and natural consequence of his work injury, and a Tennessee
chancery court determined that Kilburn’s death was compensable. Kilburn’s employer filed
an appeal claiming that Kilburn’s conduct created an intervening cause of death, and this
appeal was referred to a Special Workers’ Compensation Appeals Panel, and later transferred
to the high court for review. A five-judge panel of the Tennessee Supreme Court reversed the
chancery court’s decision relying on Tennessee case law that holds that a worker’s conduct
can limit compensability of subsequent injuries that are a direct and natural result of a
compensable primary injury. The Court concluded that since Kilburn did not take his pain
medicine in keeping with his physician’s instructions, it caused his demise. Moreover, his

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overconsumption of his medication and use of alcohol while taking the medication against his
doctor’s instructions were also contributing factors to his death. Kilburn’s death was no
longer causally related to his work-related injury and his overdose was an independent
intervening cause.
Injury Compensable when Workers’ Comp Medications Contribute to Employee’s
Death
However, in a similar case related to another injured carpenter in California, the California
Supreme Court ruled in favour of his family saying that they should receive workers’ comp
death benefits. Brandon Clark, a 36-year-old carpenter fell off a roof at work in 2008 and
suffered back, head, neck and chest injuries. His workers’ compensation physician prescribed
an antidepressant Elavil, Neurontin, a drug used to treat neuropathic pain and Vicodin. In
January 2009, Clark was also prescribed Xanax and Ambien by his personal physician for
anxiety and insomnia. A medical record analysis showed that he died the following July from
the combined effects of the prescribed drugs and associated early pneumonia.
In this case, a California workers’ compensation judge awarded benefits finding that Clark’s
workers’ comp medications contributed to his death.
Clark’s employer and its workers’ comp insurer filed an appeal, and the California 4th
District Court of Appeal overturned the workers’ comp judge’s decision in December 2013,
finding that the medical testimony in Clark’s case did not adequately establish that his death
was caused by his workers’ comp prescriptions.
This ruling was unanimously overruled by the California Supreme Court that found that the
appellate court improperly ruled Elavil was not a significant or a material factor in Clark’s
death. The ruling mentioned the following:
• The appellate court’s analysis failed to honor the difference between tort law
principles and the application of the workers’ comp scheme.
• Tort liability only attaches if the defendant’s negligence was a significant or
substantial factor in causing injury.
• In the workers’ compensation system, the industrial injury need only be a contributing
cause to the disability.

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• The physician testimony provided substantial evidence to support the workers’
compensation judge’s finding that Elavil and Vicodin contributed to Clark’s death.
Efforts on to Contain Opioid Overdosing
Overprescribing of the pain medications is an ongoing issue in the workers’ compensation
system. The U.S. Centers for Disease Control and Prevention has expressed concern in the
worsening opioid overdose epidemic and stressed the need for continued action to prevent
opioid abuse, dependence and death. Among the 47,000+ drug-related deaths in 2014, 61%
involved some type of opioid including heroin. Express Scripts Holding Co., in its latest drug
trend analysis reported a decline in the utilization of opioids but an increase in the number of
days supply that workers were prescribed. Narcotics still accounted for thirty-six percent of
the 25 most commonly dispensed workers’ comp medications in 2014. Apart from the
possibility of addiction, overdosing and death, injured workers who are prescribed opioids
early in their workers’ comp claim show more delay involved in returning to work and higher
medical costs. The World Health Organization has recommended increasing access to
naloxone that is used to revive people who overdose on heroin and other opioids, as well as
training family and friends in using overdose kits. The CDC has also recommended
increasing access to naloxone.