Posted On: January 2, 2013 by Glenn Neiman

Pain Medication Denied to Injured PA Worker

Not long ago, we discussed our belief that the Pennsylvania Chamber of Commerce and PA workers’ comp insurance industry will soon be gearing up to have legislation introduced to curtail the rights of injured workers in PA. As we mentioned, the Utilization Review (UR) process is squarely on their radar for reform. Considering the Commonwealth Court of Pennsylvania recently denied an injured worker’s access to strong pain medication she testified she needed to relieve her intense pain, one must wonder how much more reform they would like.

In Bedford Somerset MHMR v. Workers Compensation Appeal Board (Turner), the injured worker was hurt in 1987 and underwent two surgeries on her lumbar spine as a result of her work injury. She was left with several diagnoses, including arachnoiditis, failed spinal fusion surgery, small fiber neuropathy, chronic pain syndrome, discitis, osteomyelitis and spinal stenosis, any or all of which can account for tremendous pain.

Given her severe pain, the injured worker was understandably taking heavy-duty medications. As has become custom in such situations, the ever-sympathetic insurance carrier filed a UR, alleging the mediations were not reasonable and necessary. The UR reviewer issued a determination finding that Fentanyl patches, and periodic office visits to the prescribing physician, were reasonable and necessary, but that the use of Fentanyl lozenges were not.

The injured worker appealed the UR determination and litigation ensued before a Workers Compensation Judge (WCJ). During this litigation, the injured worker testified that during the last 20 years, she tried at least 12 different pain medications, which did not control her pain or she could not tolerate. Non-steroidal medications, and narcotics such as Oxycontin, Oxycodone, MS Contin, and Morphine all caused side effects too significant to permit their use. The current medications, which include Fentanyl lozenges, however, help alleviate the squeezing, crushing and burning feeling she experiences. According to the Court, “Claimant testified the Fentanyl lozenges work quickly and reduce her pain; she does not feel she could continue to live without the ability to control her breakthrough pain.”

Claimant’s physician testified that he could find some alternate cocktail of medications, instead of the Fentanyl lozenges, with the help of a pain management specialist. However, if the current medications had to be decreased or stopped, the injured worker would require treatment at a pain clinic, to minimize problems with the withdrawal process (an issue we have mentioned before as extremely dangerous in the UR context).

The workers’ compensation insurance carrier presented testimony from a doctor who performed an Independent Medical Examination (IME), who testified the use of Fentanyl lozenges was intended just for cancer and AIDS patients, and should not be used in a chronic pain setting, as the patient would simply build up a tolerance to the already-strong medication (and the injured worker in this case, admittedly, required an increasing dosage).

Having heard all of this testimony, the WCJ found the Fentanyl lozenges to be not reasonable and necessary, since this medication is approved only for cancer patients, and is highly addictive. The WCJ cited the increasing usage by the injured worker in support of his findings.

On appeal, the Workers Compensation Appeal Board (WCAB) reversed the decision of the WCJ. The WCAB found that:


Claimant’s credible testimony establishes that she has tried a number of other pain medications and has found that they either do not relieve her pain or that her body has an adverse reaction to them. We do not believe that [Employer] has put forth sufficient evidence to meet its burden of proving that the Fentanyl lozenges were not reasonable and necessary, especially in light of Claimant’s prior difficulties in finding a viable pain medication regimen.”


Upon further appeal, however, the Commonwealth Court of Pennsylvania reversed the WCAB and reinstated the decision rendered by the WCJ. The Court noted that risk to the patient is relevant to determine whether medication is reasonable and necessary. In making his decision, the WCJ found the Fentanyl lozenges unreasonable and unnecessary because of their use being limited to cancer patients, given their highly addictive nature. Therefore, said the Court, the decision of the WCJ is supported by the evidence.