Has the ‘Pain Pendulum’ Swung Too Far?

By Amanda Thompson, J.D., Senior Vice President, PartnerSource

Pain is a sensitive topic, one that can be triggering. Some of us have witnessed dying family members in such pain that even hearing the word “pain” brings back the darkest of memories. I have. And so too, many of us have witnessed loved ones suffer the throes of addiction as a result of the opioid crisis. Me, too. Certainly, all of us have felt pain before of some kind. Pain is real, and nothing in this piece is meant to diminish or disregard our respective journeys. Nothing could.

But consider for a moment that pain and its impacts on society are part of a constantly swinging pendulum. You’ve likely seen, read, or even personally experienced the effects the opioid epidemic has had on families and communities across this country. When pill mills doled out heavy, narcotic pain medication like candy, we can all agree that the pain pendulum had swung too far, striking people like boulders in its way. There is no denying the destruction, the deaths, and the enormous loss. Stricter state and federal regulations have been wholly necessary in response to the opioid crisis.  And while we can certainly praise many aspects, we may also need to put out some caution cones.

Has the pain pendulum shifted too far? I had no trouble getting a refill of the narcotic given to me after the birth of both of my children (17 and 11 years ago). Several years ago, though, I was sent away from the ER with no medication after falling in my mother’s shower (you should see me on a ski slope). I had no rib fractures, but over-the-counter pain medication was not even touching the pain. I’ve also heard other horror stories, such as the elderly parent who died of an aggressive bone cancer that was only diagnosed days before her death. She had suffered for months in agony, had been labeled drug-seeking on countless occasions, and was dismissed entirely. 

Real pain is being dismissed. People with legitimate injuries and legitimate pain are suffering needlessly, but the impacts of the swinging pendulum may extend far beyond pain patients and perhaps even into management of the Texas Option and the litigation that arises from it. 

Claims Management

No longer are we embracing pain as a society. The news of opioid addiction, drug overdoses, and family destruction, is -- quite literally -- everywhere. This news has shaped our own perceptions, and it leads me to ask if we, as a society, have become overly judgmental about a person’s pain and the need for pain medication. We have our own pendulums. Particularly in the industry of caring for employees injured at work, has the opioid crisis affected our own attitudes about pain, and about those claiming to be in it? We see medical records where a patient visits the clinic and is unhappy with the care received. Patient then heads to ER asking for relief from pain. Are we too quickly characterizing those visits as dishonest and those patients as drug-seeking?

By no means is this a suggestion that management of claims under the Texas Option requires any sort of overhaul. Successful claims administration is carried out daily, right before my eyes. I am simply asking us to be aware that recent shifts impact our attitudes and that those attitudes extend to all aspects of claim management. It may cause us to be less-than-sympathetic in future discussions, and it also may cause us to be less likely to want to take care of injured employees resulting in fewer settlements of cases that possibly should have (or could have) been settled.

Simply acknowledging someone’s pain goes a long way, even after an employee has returned to work. While someone may no longer need a doctor’s care, the residual, lasting effects of an injury may continue well after. Using empathy and speaking words of encouragement can make all the difference. People always remember how they are treated, so let us act with grace in the presence of another’s complaint of pain.

Litigation

Partnersource team leaders have seen an increase in lawsuits and claims with attorney representation that involve a diagnosis of Complex Regional Pain Syndrome (“CRPS”). CRPS first came on the scene after the Civil War, and in the past, you also may have known it called Reflex Sympathetic Dystrophy (“RSD”).  To make the clinical diagnosis of CRPS, there must be continued pain, which is disproportionate to the event, and at least one symptom from four categories, including sensory, vasomotor, sudomotor, and motor/trophic. A complete list of the Budapest criteria can be found here, but some of the criteria are asymmetry (in limbs), color changes, and temperature differences.

Litigation of CRPS had pretty much died out in the last decade, so its reappearance is notable. There is no scientific explanation for the increase, and without that, it must mean that this increase is manmade, which I believe fits squarely within the paradigm of the shifting pain pendulum. 

If I may offer a brief primer on controlled substances: Controlled substances (drugs) are listed on the “schedules” contained in the Texas Controlled Substances Act, which mirrors the companion federal law in many ways. These schedules—identified as I-IV—are categorized by their addiction and potential for abuse. Substances identified as “Schedule I” are the most dangerous, with “Schedule V” substances being those believed to cause the least harm. “Schedule I” drugs are not able to be prescribed, and are therefore “street drugs,” like heroin and LSD. Schedule II drugs are believed to be high risk for abuse or addiction risks and include amphetamine (Adderall), fentanyl, morphine, and hydrocodone (Vicodin). Interestingly and relevant here, drugs that treat nerve pain such as Gabapentin and Lyrica are Schedule V drugs, which are believed to have the lowest risk and the least potential for addiction or dependence.

Today, it seems doctors are less likely to prescribe Schedule II narcotics of any kind, and there are many legitimate and valid reasons for that.  In response to the opioid crisis, in 2016, the CDC released guidelines for prescribing opioids to deal with chronic pain. These guidelines—and the state restrictions that followed—further restricted doctor’s abilities to assist patients with their legitimate pain. Also, the authority to even prescribe those medications does not always extend to physician’s assistants or nurse practitioners, and the format, dosages, and time periods for those prescriptions are heavily regulated. Whatever the reason, it often feels like doctors don’t want to be in the business of dealing with pain at all.

So, I see it like this (and, in fact, have seen this exact scenario): Patient visits doctor and complains of pain.  Doctor instructs patient to take over-the-counter pain medication. Then, after a few visits with no real improvement, doctor records a blanket coverall “CRPS” diagnosis (with no objective analysis of symptoms or the Budapest criteria) and then refers patient for pain management. Gabapentin (a Schedule V) is a medication often prescribed for CRPS. We should all be asking ourselves, does the patient really have CRPS, or does the doctor just need to be able to prescribe them a medication with no real oversight?  Or does pain management feel too risky for the doctor, leading him or her to refer the patient to a pain management clinic? Medical professionals at pain management clinics may not have the required license to prescribe a Schedule II narcotic (and I’m not arguing they should), but even if they do, pain management clinics know that they are under a microscope. Therefore, they are left to prescribe those medications on the Schedule V. And perhaps, it isn’t that they’ve found a prescription to fit the diagnosis, but rather, a diagnosis to fit the prescription.

If this isn’t a direct result from the swinging pain pendulum, then I do not know what is. And so it swings. The patient now believes he will have a chronic pain condition for life, which could lead to depression, inactivity, and other conditions known to further hinder progress. The plaintiff’s attorney believes she’s struck gold, bringing about a new meaning to the motto “no pain, no gain.” Only time will tell whether this proves true. Litigation of CRPS cases is complex and expensive, requiring experts who can speak intelligently about CPRS in an effort to convince the factfinder to buy their respective positions.

PartnerSource will continue to monitor and study these recent increases in CRPS cases. For assistance and advice regarding the management of CRPS claims, please contact your PartnerSource team leader. Until then, I will continue to consider the effects of the pain pendulum on our society and on claims management (and I hope you will, too).