Additional licensure and certifications aren’t unheard of in the world of occupational health. In 2016, the Federal Motor Carrier Safety Administration implemented a new rule that only doctors on their registry can perform DOT Physical Examinations for truckers and other professional drivers. This reduced the number of doctors who can perform those examinations.
When I testified on LB 408, a bill that would have implemented drug formularies for opioids under the Nebraska Workers’ Compensation Act, some doctors were testifying that there was little training in regards to prescribing opioids. Though an opioid prescription registry like the DOT examination registry wasn’t proposed, you could certainly see it proposed as a solution to the opioid problem.
But that article also shared studies that state that pain pill prescriptions are not driving the opioid epidemic. Patients with pre-existing addiction issues are more likely to become addicted to opioids and 75 percent of those who develop opioids start taking opioids in a non-prescribed manner. Furthermore, only 12 to 13 percent of ER patients who are treated for opioid overdoses are chronic pain patients.
The repeal of the Affordable Care Act (President Barack Obama’s health care law) is a real possibility in the Trump administration. It will be difficult to know how a repeal would affect workers’ compensation without having an idea about what alternative plan, if any, would replace the Affordable Care Act. But it seems certain that if Americans lose health insurance, they will have less control over their own medical care if they are hurt at work.
In 2011, Vermont passed a single-payer health care plan. In a blog post I wrote for Jon Gelman’s blog, I observed that if all employees had their own doctors, it would be next to impossible for employers to route injured workers to occupational-medicine clinics. A blogger for Lynch Ryan made a similar observation. Doctor choice is critical, because some employers go so far as to unlawfully conspire with claims adjusters and doctors to undermine the value of an employee’s workers’ compensation claim. A single-payer system decouples health insurance from employment, which makes employers less influential in the system
The ACA is not a single-payer system, but millions of Americans gained health insurance through public Medicaid programs in states that chose to expand Medicaid after the Supreme Court struck down the mandated Medicaid expansion in 2012. This coverage was decoupled from employment. Insurance obtained through an exchange is also not tied to individual employers either. People who lacked health insurance tended to not have doctors, which meant that they had no choice but to see whomever their employer wanted them to for a work injury.
Workers who report an on-the-job injury may not be subject to mandatory drug testing if a new rule from the Occupational Safety and Health Administration that prohibits blanket post-injury drug tests withstands a court challenge from employers.
Though OSHA implemented the limits on drug testing to limit retaliation, the rules limiting drug testing also help preserve employee doctor choice, which is an integral part of workers’ compensation law in Nebraska and other states. Many employers will inform employees that they must get drug tested at an occupational medicine clinic if they have a work injury even if workers have a right to see their own doctor. This can lead to employees being forced back to work too soon and or not receiving sufficient treatment for their work injuries. Both the fear of retaliation and the circumvention of doctor choice rules lead the costs of work injuries to be borne by employees, which is a major concern of the Department of Labor.
A case out of Texas may provide injured workers to a way to enforce their state’s doctor choice laws. In Warneke v. Nabors Drilling USA, a Texas appellate court held that a workers’ fraud and misrepresentation case against his employer for lying about having workers compensation coverage was not barred by the exclusive remedy of the workers compensation statute because the fraud was separate from the work injury.
A workers compensation doctor choice fraud and misrepresentation claim would be difficult to prosecute, but as a fellow trial lawyer told me at a recent AAJ membership and PAC drive, if things were easy people wouldn’t need lawyers.
In Warneke, the employer lied when it told their injured employee that they did not have workers compensation insurance. The court said the fraud caused the plaintiff to incur unpaid medical bills as well as emotional damages from economic distress. Continue reading →