Since 2011, Omar Hernández has served as the Senior Judge at the Department of Industrial Accidents (DIA), where he...
Alan S. Pierce has served as chairperson of the American Bar Association Worker’s Compensation Section and the Massachusetts Bar...
Massachusetts’ Department of Industrial Accident (DIA) is launching a two year pilot program called the Opioid Alternative Treatment Pathway (OATP). This program will allow attorneys, judges, and injured workers within the DIA system quicker access to medical professionals in the case of opioid dependency. In this episode of Workers Comp Matters, host Alan Pierce talks to Judge Omar Hernández about the program, how it works, and how it helps address the opioid epidemic.
Omar Hernández has served as the Senior Judge at the Department of Industrial Accidents (DIA), where he is responsible for the Division of Dispute Resolution.
Workers Comp Matters
Opioid Alternative Treatment Pathway
Intro: This is Workers Comp Matters, hosted by attorney Alan S. Pierce, the only Legal Talk Network program that focuses entirely on the people and the law in workers’ compensation cases. Nationally recognized trial attorney, expert, and author Alan S. Pierce is a leader committed to making a difference when workers comp matters.
Alan S. Pierce: Welcome to another edition of Legal Talk Network and Workers Comp Matters. This is your host Alan Pierce, an attorney with Pierce, Pierce & Napolitano in Salem. And we are bringing you yet another edition of Workers Comp Matters today with our guest, Senior Administrative Judge Omar Hernández.
Before we get into our topic of chronic pain and how the Department of Industrial Accidents is dealing with the opioid crisis, we want to thank our sponsors.
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The issue of pain, chronic pain, pain management and the utilization of opioids is a topic that has been probably one of the most prevalent topics discussed, both in Massachusetts and nationally, not only in general, but in the setting of workers’ compensation. Many of our clients deal with chronic pain, many of our clients take opioids, many of our clients have been on opioids for many years.
And we have done several shows here on Workers Comp Matters on the effectiveness or ineffectiveness of certain types of chronic pain treatment.
Today our guest is Senior Judge Omar Hernández. Judge Hernández is the Senior Administrative Judge here at the Department of Industrial Accidents. He is a first-generation Cuban-American. Our first Hispanic appointed judge here at the Department of Industrial Accidents. He is a graduate of Cornell University, Suffolk Law School, 2003 he was appointed as Administrative Judge here at the Department of Industrial Accidents.
He previously served as Deputy General Counsel for the Human Resources Department, handling Labor Relations and Civil Service issues, as well as having served as the Staff Attorney in Workers’ Compensation Litigation for the Human Resources Division. He also was appointed by the Governor to a term, which he currently is filling, at the Department as Senior Administrative Judge.
And he is here today to address issues surrounding how the Commonwealth of Massachusetts has been dealing with the problems inherent in treatment of chronic pain and the use of opioids.
So Judge Hernández, thank you for being here.
Judge Omar Hernández: Well, thank you Alan. Thank you for having me on your program.
Alan S. Pierce: And thank you for not wearing your Yankees cap, go Red Sox.
Judge Omar Hernández: Go Yankees.
Alan S. Pierce: Even though we are chuckling a bit, there couldn’t be any subject perhaps more serious to my clients, to the citizens of the Commonwealth and even to those here at the Department, who have to process, manage and adjudicate claims involving people that were hurt in the workplace, in terms of dealing with the additional problem of what happens to somebody when in the course of their treatment they take prolonged use of medications, which might have serious unintended side effects. And not only is there a cost from a money standpoint, but more importantly, there is a cost from the human standpoint, not only for the injured client, but their families as well.
So I do want to say that in my role, both as host of Workers Comp Matters and just in general, Massachusetts around the country, and I think you know this, but I think it bears stating has been looked on and is continuing to be looked on in other jurisdictions, as somewhat being a leader in addressing head-on these issues.
So I thought it was appropriate that we discuss what it is that Massachusetts has done, is doing, and is planning to do going forward that is starting to make an impact and is starting to deliver results.
So I think to start with give us kind of your overview of how you as a Senior Administrative Judge here sees this, I guess we will use for lack of a better word, crisis in opioid dependency.
Judge Omar Hernández: Right. At the DIA, we are trying to take a proactive approach to deal with this crisis. Previously the way the system was designed really wasn’t addressing the issues that needed to be addressed. So we formed a blue ribbon panel of stakeholders from both sides of the bench, with practitioners, nurses, doctors, judges to come up with a way that was compassionate in the way we treat these injured workers who are dependent on opioids.
And basically, the program is — it’s a voluntary program, because under the statute I really don’t have a mechanism to force them into this program and we felt time was of the essence and rather than try to change statute regulations, we work within the confines of Chapter 152 and the regulations.
So in this program, it’s a Post Lump Sum. So this is any cases that have been settled within the DIA, liability has been established. In Massachusetts, when liability is established, the insurer is responsible for any future medical treatment as long as it’s reasonable, necessary, and cause related to the incident for long as — for the employee’s life. So it can be costly on the insurers.
So either party can volunteer for this program or move forward with this program. There are new forms and with every state government there’s always new forms. And basically we are trying to establish a dialogue between the parties, which has been lost due to the number of years that have gone by since these lump sums have happened.
Alan S. Pierce: And I am glad we got right into this program, because that is the program that has been attracting a lot of interest, along with our Treatment Guidelines, which we will get into also. The program that Judge Hernández is referring to is the Opioid Alternative Treatment Pathway (OATP) and basically let me set up how this works.
As Judge Hernández indicated, medical stay open after settlements so that employee, my client is getting his lidocaine patches, getting his oxycodone, OxyContin on a regular basis, or it’s increasing of an amount that is ongoing. The insurer wants to reduce or possibly stop this.
Typically what happened before the OATP program came in, the insurer would get a medical report from a consulting pain management doctor, who might opine that this treatment is no longer reasonable and necessary or could be dangerous and/or not as effective as it could be, or the patient should be weaned, or other things should be tried, which by the way gets us into the Treatment Guidelines.
Typically before this Treatment Pathway program, the insurer would file a complaint for discontinuance of the pain medication. The case would go through the dispute resolution process, go to a judge, a judge would then have to make the call, do I force this client to reduce, do I allow the insurer to terminate, or do I keep the status quo because as a judge, what role do I have to tell somebody what they can or can’t take.
So that was the problem as I saw it as a practitioner. My client gets caught up in a legal process in a system that really requires a medical, psychosocial sort of cooperative attempt by all the stakeholders.
So what this Pathway does is it takes these cases where the insurer wants to reduce or discontinue benefits out of this litigation path and puts us on this alternative path.
So describe to us what happens to that claim, once the insurer files a complaint, it goes first to an initial meeting called a conciliation.
Judge Omar Hernández: That’s correct, goes before a conciliator. If both parties agree and then moves to a mediating judge; whereas, in the traditional litigation process, that could take up anywhere between two, three, four months; here happens within 30-45 days. And that was designed specifically because we realize time is of the essence.
Alan S. Pierce: And of course, during this time, the insurer is required to continue to keep paying for the meds, even if they feel that it’s too much or shouldn’t be paid at all.
Judge Omar Hernández: Correct, correct. It then comes before a mediating judge and at that point the parties discuss executing a 19 Agreement and basically establishing the goals, expectations from both sides, as you just mentioned earlier, this is a multidiscipline approach which really wasn’t happening in the traditional kind of litigation process.
Alan S. Pierce: And the 19 Agreement, for those of you out there who aren’t familiar in Massachusetts, it’s a Section 19 Agreement that allows the parties essentially without prejudice through their rights to defend or prosecute a claim to agree to do something.
Judge Omar Hernández: Correct.
Alan S. Pierce: And in this case, it would be to retain, first of all, a mediating judge and a case manager gets assigned?
Judge Omar Hernández: Correct.
Alan S. Pierce: Okay, so what happens at that point?
Judge Omar Hernández: So the case — we have a case coordinator is signed on as well and the case coordinator helps guide the employee through different treatment plans. It’s a very, I guess a multidiscipline approach, and it can be difficult for the employee to manage.
So with this care coordinator, finding the right medical treatment necessary for these individuals, and again, it’s case-by-case. There are different drugs, different modalities that need to be done, so it’s not just a broad paintbrush. It has to be truly individualized for each injured worker.
Alan S. Pierce: And I think what makes the chance of success of this program better is that in the same room or part of the same process you have a representative of the payer, the insurer, either through their counsel or they could bring whoever they want, if they have their own nurse case manager, they want the claims rep or the attorney involved, you don’t have to wait to request approval or authorization to substitute drug X for drug Y or to make an appointment for let’s say a psychosocial evaluation, because we all know psychology is a big part of dependency and/or relief from dependency.
So you get everybody, if not in the same room, literally they are in the same place procedurally and working together. So you are not requesting permission from an insurer to do this, you have got something going on.
So take us through a successful transition from the status quo to something better for the injured worker and presumably better for the insurer, that’s been paying for all of this.
Judge Omar Hernández: Right. Well, at this point we have got both parties who are engaged. That level of mistrust between the injured worker and the insured, obviously indemnities are no longer on the table and it’s basically looking for a way to provide compassionate medical care, and that’s basically what we are looking for here and take out that litigation, well, we are going to pay for this and not pay for that.
We are all looking for the same goal is to reduce dependency of opioids with respect to these injured workers. These people did not ask to get hurt, did not ask to be dependent on these drugs.
And the insurers, again, are engaged, the parties are engaged, and hopefully what we want to do is they move into these programs. If at any point there are any issues, not meeting their goals, expectations, they can come back into this program at any time. They don’t have to wait for another court date or they have got to wait six months, they can come in immediately, hammer out what issues are at stake and then continue to move forward.
And that’s our goal is basically keep the parties engaged, remaining proactive and again, provide that medical care to wean them off of this dependency.
Alan S. Pierce: And I think you said at the outset that this is voluntary, mutually voluntary, so that I presume — well, I know that if an employee for whatever reasons doesn’t want to enter into this Alternative Treatment Pathway or finds it isn’t working or the insurer isn’t happy with it, either side can withdraw from it and then go through the usual litigation model, where a judge will basically do a thumbs-up or thumbs-down or a thumb in the middle as to what the employee can expect, and I think we have all found that that’s probably the least effective and least satisfying to the parties.
So how long has the OATP program been in effect?
Judge Omar Hernández: We went live June of last year and currently we have 34 individuals in different stages of treatment programs and we are seeing some positive results. No one has concluded yet — this program, what physicians have told me, it takes probably a year, year-and-a-half to kind of go through this type of process.
Alan S. Pierce: And as far as you are aware, is Massachusetts the first state to put together something like this within the actual bureaucracy of a Department of Industrial Accidents?
Judge Omar Hernández: That is my understanding, yes Alan.
Alan S. Pierce: And that’s my understanding too, because I have had some inquiries, when people know I am from Massachusetts and they are from other states dealing with this issue, they have asked me to talk about how this works and what it means. So I have been happy to do that, but no better person to have to do it than you today and reach a bigger audience.
I think this is an appropriate time to take a short break. We will be back in a few minutes with our guest, Senior Judge Omar Hernández.
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Alan S. Pierce: Welcome back to Workers Comp Matters, where I am going to continue our discussion with Judge Omar Hernández about the Massachusetts model of dealing with opioid dependency in the context of workers’ compensation claims.
We spent the first part of the program talking about this Opioid Alternative Treatment Plan, and because it involves only cases that have been lump sum settled where medicals are open and continuing by definition, it means that these are older cases. These are people that may have been on chronic opioid medications for five years or even, I have got a client that goes back to 1979 and we are entering into that program. So you can be almost 30 or 40 years into it or three or four years into it. So that’s one category of problems.
The other category that the Department has done a good job of addressing is preventing this from happening in the first place, because the cow is out of the barn on the older cases, but we don’t want to get a continuing source of new business of new people coming into the system.
So in May of 2016, the DIA promulgated a Chronic Pain Treatment Guideline document. Again, something that has been a model, I think some of this may have come from other jurisdictions that have done the same thing.
And so I want to refer to that with the Judge, these Chronic Pain Treatment Guidelines spell out in rather elaborate detail some guidelines for alternatives to opioid medications. And usually, and again, forgive me for going on on this, but when I look at Treatment Guidelines that come down through the Department, usually from the eye of representing injured workers, I am usually not in favor of them, they seem to put limits on durations of treatment, types of treatment.
However, when I was asked to comment on this particular Treatment Guideline, I said finally, because in addition to recognizing that more than short-term limited opioid use, anything beyond that is dangerous, the Guidelines go on on several pages of actually listing other types of alternative protocols. And I will just go over a couple of them; work conditioning, work hardening, thermal biofeedback, acupuncture, psychosocial evaluation, psychological management, therapeutic spinal injections, facet injections, rhizotomy, SI joint trigger point, Botox, psychosocial, etc.
From a practitioner standpoint, before these guidelines when I would ask an insurer to pay or authorize any of these things, I would be met with a tremendous amount of resistance. So I was very pleased to see page after page of alternatives of things that insurers generally were reluctant to approve, especially a psych visit, they just were afraid of opening up a psychiatric component to a claim, where we all know that this doesn’t mean it’s a psych injury, it just means that you have to have more than just a medical doctor specializing in pain management. You need sometimes some mental health.
So tell us how that has worked?
Judge Omar Hernández: Right. And that’s part of the education we are trying to do here at the Department is to kind of change that train of thought. And I agree with you Alan, insurers were rather hesitant to pay for those alternative types of treatment, but now with them being engaged, knowing how terrible this crisis is, they are realizing that those types of alternative treatment are productive in treating chronic pain. Physicians have said opioids are ineffective for treating for chronic pain.
So I think we are seeing a trend downwards towards that open-ended prescribed opioids and the insurer is embracing these types of alternative treatment programs, which you just mentioned.
Alan S. Pierce: And I think most of our listeners are familiar with the Workers Comp Research Institute (WCRI), they study all aspects of workers’ comp systems all across the country. They have been particularly studying the different factors in opioid dependency, in terms of costs, in terms of duration of temporary total disability benefits and a variety of other statistical analyses. I understand that they also have had an interest here in what’s been happening in Massachusetts?
Judge Omar Hernández: That’s correct. And recently they testified before a Congressional Subcommittee in Washington regarding what states are doing with respect to the opioid crisis and they mentioned our program with respect — that Massachusetts was basically a leader in the country with respect to this type of crisis. Congressmen on the Subcommittee said we can learn something from the state. So that was a nice recognition from the WCRI as well as Congress.
Alan S. Pierce: And just to take things one step further, something a little more recent than the Pathway and the Chronic Pain Guidelines, we have a Governor, Charles Baker, Charlie Baker here in Massachusetts who also understands, not just from the workers’ comp setting, but just in terms of broad society the opioid crisis and he has — through him he has filed a rather comprehensive piece of legislation to deal with the opioid crisis in general and there is some specific reference to the Department in that bill.
So perhaps you might be able to — it hasn’t passed yet, but you might be able to educate our listeners as to what we are doing in the Commonwealth more globally as it would affect the DIA?
Judge Omar Hernández: Right. I think you are speaking about the drug formulary and he has asked that the workers’ comp be a leader with respect to drug formulary program and how these types of opioids are prescribed specific to workers’ comp.
Alan S. Pierce: And also establishing another sort of Subcommittee or Sub-Commission to continue to study and to get input from the medical community, we have a Health Care Services Board here headed up by actually a nationally known medical doctor, Dean Hashimoto, also a lawyer. And he and the HCSB are also very much in the forefront.
The issue of drug formularies is a hot topic. We will be doing a show on this in the future. I would say those of us who represent injured workers generally are not in favor of drug formularies, for a variety of reasons which I won’t get into now. However, we felt as a group that if we were to have a drug formulary in regards to medications that were limited and applied to opioids that we certainly could live with that and we think it would probably be a good thing.
So again, this is an example of how the stakeholders have been brought into the system. As the Judge mentioned, the Mass Bar Association has a task force that has helped along the way and continues to meet and deal with this.
So at this point, I guess I want to just formally recognize the efforts that the Department has made, that Director Linda Turner, Senior Judge Hernández and the staff here has made, because I have already seen a tangible benefit to my clients and it helps me initially when I meet a client and he or she tells me that she is taking, whatever, these medications, I give them a copy of the Guidelines and I tell them they really need to speak with their doctor and explore before they get too far down the road to get in control of this.
Any final words, if somebody wants to learn more about what you are doing here in Massachusetts, how might they contact you?
Judge Omar Hernández: It’s on our website. You go to mass.gov and the program is outlined on our website.
I would also like to thank the Mass Bar Association as well as you Alan, being so supportive with this program. Obviously, I can’t do this alone and be engaged with all parties, all stakeholders has really made this program successful.
Alan S. Pierce: And for that, I will say thank you Judge Hernández. Thank you those of you who have listened to our podcast and stay tuned for another edition of Workers Comp Matters. Go out and make it a day that matters.
Outro: Thanks for listening to Workers Comp Matters today on the Legal Talk Network, hosted by attorney Alan S. Pierce, where we try to make a difference in workers’ comp legal cases for people injured at work. Be sure to listen to other Workers Comp Matters shows on the Legal Talk Network, your only choice for legal talk.
Workers' Comp Matters encompasses all aspects of workers' compensation from cases and benefits to recovery.
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