510 Pills Per Month With Little Improvement: Tennessee High Court Allows Change of Physician

Illustrating the deep—and sometimes bitter—divide between some who espouse clinically oriented medical treatment and others that promote the so-called “best practices” guidelines outlined in evidence-based medicine (EBM), a Special Workers’ Compensation Appeals Panel of the Supreme Court of Tennessee, in Russell v. Dana Corp., 2016 Tenn. LEXIS 520 (Aug. 1, 2016), aff’d and adopted, 2016 Tenn. LEXIS 519 (Aug. 1, 2016), held that a state trial court erred when it denied an employer’s motion to remove an injured employee’s treating physician where the evidence indicated that although the employee had achieved MMI more than 20 years earlier, the employee’s physician was still prescribing some 510 pills each month, many of which were Schedule II controlled substances. Acknowledging that the employee’s treating physician was entitled to a rebuttable presumption that his or her treatment was reasonable and necessary, the panel found that the employer had more than adequately rebutted that presumption.


In 1991, Russell sustained a compensable cervical spine injury and left carpal tunnel syndrome. She achieved MMI and returned to work briefly. She returned to work for a brief period in 1992, was laid off in 1993, and never returned to work for any employer. In 1994, a trial court awarded Russell 80 percent PPD benefits to the body as a whole. It also awarded future medical benefits. Russell was referred to a family practice physician (“the family MD”) for such future medical care.

Decades of Treatment: 510 Pills Each Month

According to the Supreme Court panel, between 1995 and 2013, the family MD prescribed various combinations of medications for Russell, including Lorcet, Valium, Zoloft, Neurontin, Bextra, Flexeril, Xanax, Dexamethasone, Cymbalta, Effexor, Trilepital, Lortab, Celebrex, Percocet, Mobic, Trazadone, Lyrica, Celexa and Zanaflex. According to the panel, while some of the medications were for other, unrelated conditions, the family MD prescribed Oxycodone, Celexa, Mobic, Xanax, and Zanaflex for treatment of her work-related injury. As of February 2010, Russell was taking approximately 510 pills a month.

In 2010, Russell also underwent rotator cuff surgery unrelated to her work injuries. By 2013, Russell was also receiving treatment from a psychiatrist for anxiety/panic attacks and PTSD—conditions also unrelated to her work injury.

Employer Sought an Independent Medical Evaluation

In 2013, the employer sought, and the trial court granted, an IME request. Following an examination and review of the medical file, the IME physician opined that none of Russell’s ongoing complaints were related to her original injury. The IME physician said he would not place any restrictions on Russell’s activity that were related to either the cervical injury or the carpal tunnel syndrome.

With the report in hand, the employer filed motions seeking to “de-authorize” Russell’s treating physician and to provide a panel of three pain management physicians for Russell’s future medical treatment. The trial court denied the motions and the employer appealed.

IME was Appropriate

Initially, the panel considered whether the appointment of the IME had been justified. Noting that the trial court was afforded wide discretion in determining the issue, the panel also observed that between the 1994 final judgment and 2013, Russell’s medication regime had expanded to include an assortment of pain medications that were prescribed to treat various issues unrelated to her work injury, including two suicide attempts in 2004 and 2005, and at least one surgery in 2010. The employer accordingly had a good faith reasonable basis for questioning both the causation and the necessity of the medication regime the family MD had prescribed.

Removal of Russell’s Treating Physician

As to requiring a change in treating physicians, the panel cited earlier decisions of the state’s Supreme Court—one of which quoted Larson’s Workers’ Compensation Law—and indicated that in the absence of a change in condition or evidence that the treatment was defective, or that additional treatment was needed, Russell was entitled to continue the use of her treating physician. The panel added that in its effort to rebut the presumption, the employer here had offered evidence that (a) there had been a change in condition, and (b) that Russell’s ongoing treatment was defective.

The employer’s evidence took the form of a report prepared by a board certified pain management specialist who opined that none of the pain medication prescribed by the family MD was necessary to treat the original work-related condition. The IME physician added that Russell’s medication was providing little or no benefit and actually creating a substantial risk to Russell’s health. The specialist also stated that Russell had twice overdosed on her pain medications, often took Percocet in amounts exceeding the prescribed dosage, and regularly consumed alcohol while taking various mixtures of opioids, muscle relaxers, anxiety medication, anti-inflammatory medication, and anti-depressants. In short, the panel indicated the expert pain specialist had clearly established that Russell had misused, and continued to misuse, her medications.

The panel acknowledged that the family MD submitted a handwritten response to the expert’s report, but that lacked any analysis or explanation as to why Russell’s multiple pain medications were required to treat Russell’s work-related injury and condition. The panel indicated the family MD’s “report” was not responsive to the pain specialist’s report and recommendations. Noting that the family MD was not certified in pain management and had been unwilling to modify his course of treatment in any way, the panel said that under these facts the family MD’s treatment was not reasonable. The family MD had neither attempted to reduce the dosages prescribed nor referred Russell for treatment for her addiction. Indeed, said the panel, the family MD replaced Russell’s hydrocodone prescription with the more powerful opioid, oxycodone. In light of all this, the panel concluded (and the Court adopted the panel’s position) that the trial court had erred in refusing to discharge the family MD.

Russell’s Prescription Cocktail Was Particularly Dangerous

Although the issue was not specifically addressed by the Court, a number of recent studies (see, e.g., my own discussion of a study by Robert A. Lavin, MD, MS, et al., “Impact of the Combined Use of Benzodiazepines and Opioids on Workers’ Compensation Claim Cost,” Journal of Occupational and Environmental Medicine) would argue that Russell’s prescription cocktail was inherently dangerous. Indeed, combining opioids, such as Oxycodone, with benzodiazepines, such as Valium or Xanax, has been shown to be medically problematic.

Benzodiazepines and high-dose opioids are associated with mental health and substance misuse. High doses of opioids and concurrent use of opioids and benzodiazepines are associated with higher mortality. Many experts have concluded that prolonged use of benzodiazepines is habit-forming. The drugs make up part of a popular, but dangerous drug combination of (a) short-acting opioids, (b) muscle relaxants and (c) anti-anxiety drugs that are sometimes called the “holy trinity” by drug abusers, since the feeling of euphoria that the combination can produce is similar to that produced by heroin. Yet, according to the Court, Russell’s family MD did not try to wean her from the dangerous combination of drugs and instead strenuously disagreed with the pain management experts that Russell’s prescription medications should be curtailed at all.

Battle Between Clinically Oriented Treatment vs. Evidence-Based Medicine

This battle between some practitioners, who lift up an inviolate, the relationship between the clinical physician and others, who propound the efficacies of EBM is loud and ongoing. As I have noted in previously published articles (found here and here), the words between the opposing camps within the workers compensation world have sometimes turned nasty. Even when the debate is more cordial, there is palpable tension between the sort of clinically oriented medical treatment insisted upon by Russell’s family MD and that recommended by physicians who follow EBM.

Generally speaking, some on the EBM side argue that physicians and others too often provide medical treatment that is neither reasonable nor necessary (see, e.g., Atul Gawande, MD, “Overkill: An avalanche of unnecessary medical care is harming patients physically and financially. What can we do about it?” The New Yorker, May 11, 2015), and that some clinically oriented treatment does little, other than line the pocket of the medical care provider. Many who favor clinically oriented medicine counter that in most cases the best outcome for the injured worker flows from careful discussion of available options between the injured worker and his or her physician. It does not flow from consulting a national medical study chart or dataset.

While one can never get a full picture from a legal decision, one is left wondering just how much true discussion went on between Russell and her family MD? If the physician’s investment in Russell’s medical condition was as strong as the physician seemed to indicate, might he have taken the time to dictate a more complete report, instead of scribbling some notes by hand?

Conversely, why did it take 20 years for the employer/insurer to complain that Russell was being overmedicated? It’s easy for the employer to throw stones, but could it not have forced the issue sooner?

False Choice: Must it be Either/Or?

Many of us within the workers’ compensation setting feel that all too often the debate between clinically oriented treatment, on the one hand, and rigid use of EBM guidelines, on the other, represents a false choice. Neither side has a monopoly on truth. Injured workers and employers/insurers need to recognize that the opposing party has a legitimate interest in the recuperative treatment process.

It’s fine for the physician and patient to make the decisions in isolation, relying upon the sacrosanct patient-physician relationship as long as they don’t send the bill to the employer or insurer. The insurer, on the other hand, should allow reasonable latitude to the physician to treat the injured employee, based on the patient’s individual needs.

The blogosphere is replete with horror stories from California, Pennsylvania & Illinois, in which some insurers are inappropriately submitting utilization review requests related to simple, inexpensive procedures. The result is unnecessarily driving up the cost of claims administration. It’s clogging the administrative processes as well. This Tennessee case points out that the equities don’t always reside with the injured employee, however. The via media should produce the best results.


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