Good News From PA Court – ACTIQ Not Reasonable in Workers’ Comp Back Injury

October 10, 2012

Fentanyl (ACTIQ), a highly addictive opioid
Fentanyl (ACTIQ), a highly addictive opioid

The Pennsylvania Commonwealth Court, in a decision published late last month, seized upon Fentanyl (ACTIQ), a highly addictive opioid, 100 times more powerful than morphine, when it ruled specifically that Fentanyl lozenges were not appropriate as treatment for a workers’ compensation low back injury. According to defense counsel, Ronald A. Varga, the decision of the Court “could be significant” as it provides carriers with “a mechanism to cut of this medication and switch to something else”.

The original dispute occurred after Utilization Review findings concluded that the Fentanyl lozenge was not appropriate and necessary treatment for a low back injury because of its highly addictive nature and because its only approved use is listed as end stage cancer pain. The original decision, made by the Workers’ Compensation Board, found that the risk of addictive and potential danger to the patient is a valid and reasonable basis for the determination of the appropriateness and necessity of a treatment regimen. Upon appeal, however, divided Workers’ Compensation Appeals Board (WCAB) overturned the decision, noting that the availability of alternative treatment options “does not, in and of itself, render claimant’s current pain management unreasonable or unnecessary”.

The Commonwealth Court, in its reinstatement of the original ruling, noted the following:

1. The utilization review process is the sole method for determining if a disputed treatment is reasonable and necessary.
2. In making its determination of reasonableness and necessity, it is entirely appropriate for UR reviewer to consider the risk to the patient.
3. The reviewer in this case was within his rights to “consider whether it is reasonable and necessary for a provider to expose his patient to the level of risk presented by a medication”.
4. The weight and credibility of a utilization reviewer’s findings is for the workers’ compensation judge to decide.

As a resource for other employers, it is likely that we’ll see this decision cited as justification to contest the use of this very dangerous opioid. If an employer or insurance company can obtain objective medical opinion that the treatment the patient is receiving is highly addictive and there are alternatives to the use of narcotics, this case will certainly support an effort to challenge the prescription.

For more information on the decision and its implications, see (subscription required).