The Feel Good Doctrine Still Controls the Determination of Medical Treatment in Ohio Workers’ Compensation Claims

When determining if certain medications or treatment procedures are reasonably necessary, it is important not only to consider the patient’s needs but also to review what is considered appropriate under accepted medical standards and governmental guidelines.  This is also important when managing the effective use of medications in a workers’ compensation claim, especially pain medications that can be either addictive or have severe consequences from the wrong use.  Unfortunately, in Ohio’s workers’ compensation system, the final decision in most situations will lie with the opinion of the patient and his or her treating doctor.  This problem was highlighted recently in the case of State ex rel. Honda of America Mfg., Inc. v. Industrial Commission of Ohio (Ohio App. 10^th Dist. 2013), No. 12AP-268.  In this case, the Tenth District Court of Appeals ruled that while the Bureau certainly has the authority and ability to issue guidelines on what it will not pay for in terms of drugs and pharmaceutical types of treatment, the Industrial Commission is not bound by any of those policies.  More importantly, the Industrial Commission is not even bound by the limitations provided by the Federal Food and Drug Administration (“FDA”) for approval of certain medications.  The Industrial Commission is free to decide what is reasonable and necessary for the treatment of a workplace injury based on the testimony of the injured worker and his or her treating physician.

In the Honda case, Nathan Lawson was prescribed Lidoderm patches as treatment for pain associated with his right shoulder and right elbow injuries.  It was undisputed that the United States FDA had approved the use of Lidoderm patches only for treatment of post herpetic neuralgia (“PHN”), otherwise known as “shingles.”  Because of this FDA provision, the Bureau of Workers’ Compensation refused to provide reimbursement for these patches if the claim was not allowed for PHN.  As a result of both the Bureau’s pharmaceutical guidelines and the FDA limited approval for Lidoderm, Honda refused to provide reimbursement for Mr. Lawson’s use of the patches as prescribed by his treating physician, Dr. May.  Mr. Lawson then filed a motion with the Industrial Commission seeking approval of the treatment and an order requiring payment by Honda.  While no one challenged the fact that the FDA had only provided limited approval for the use of Lidoderm patches, the Industrial Commission still approved the treatment based solely upon a report from Dr. May that the patches have a pain relieving quality that is effective in treating Mr. Lawson’s shoulder condition, and the testimony of Mr. Lawson that the patches have been successful in helping control his pain.  No further consideration was given by the hearing officer to the reasons why the FDA only provided limited authorization for the use of this medication, nor was there any explanation from Dr. May as to why the FDA prohibition should be ignored or is invalid.

Honda then filed a mandamus action in the Tenth District Court of Appeals to challenge the Commission’s ruling.  In denying Honda’s request for mandamus relief, the Court pointed out that the case law in Ohio clearly establishes that the Commission is not required to follow Bureau guidelines or FDA policy in its determination of what treatments are reasonable and necessary.  The Commission merely has to rely upon some medical evidence from the treating doctor or it can rely upon the testimony of the injured worker to establish what is reasonable and necessary.

The Honda decision clearly points out a serious dilemma that exists in Ohio’s workers’ compensation system with regards to evaluating the proper utilization of medical treatment and medications.  All it takes is a statement from an injured worker that the treatment “makes me feel better” for any treatment to be approved, even though that treatment may be considered inappropriate and outside the standards of care established by a governmental agency, professional association, or other experts.  With this unlimited authority vested in the Hearing Officers, we will always have a problem managing utilization and treatment under Ohio’s workers’ compensation system.  Employers should keep in mind that when faced with questionable treatment or the use or abuse of questionable medications, the side effects and harmful implications of the use of these treatments should be highlighted both in an effort to persuade the Hearing Officer to deny the treatment and to also help educate the injured worker on what may be a terrible mistake.