National Edition Banner March 2010
Vol 2, Issue 24

Find Solutions & Strategies                               June 13, 2011

Off Label BottleOff-Label Use of Medical Products & Services


When workers' compensation might cover what no one else will

In This Issue
-LARSON'S SPOTLIGHT: 5 RECENT CASES: Smoking Break, Homebased, Death Benefits, Loss of Use, Domestic Employee
A Note From Our Guest Editor
Vernon Sumwalt

Dear WC Professionals:


This issue of the eNewsletter focuses on off label uses of medical products in our workers' compensation cases. Like their other aspects, workers' compensation systems for medical treatment avoid strict or technical prerequisites for coverage, such as the exclusions or limitations found in health insurance policies or even governmental plans. But in recent years the attempt to shift costs away from workers' compensation and towards these other payors has been met with resistance in the form of allegations that off label uses are not scientifically or clinically valid. The articles and resources in this eNewsletter illustrate the complexities of this issue.
Vernon Sumwalt, Esq.
Charlotte, NC
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off-label uses

Pills Thumbs"Off Label" Uses of Medical Products and Services, by Vernon Sumwalt, Esq. Under most workers' compensation programs, coverage for medical treatment differs from the coverage afforded by other plans. For example, state workers' compensation programs often cover "reasonable and necessary" medical expenses related to an injury, while group health policies limit the quantity of appointments, the network of available providers, or even the total amount payable. Most workers' compensation programs do not contain the same exclusions from coverage as those in contractual or governmental plans of coverage.


These other plans often exclude coverage for "experimental" treatment. The defense that proposed treatment is "experimental" and not covered through workers' compensation has increased in popularity in all jurisdictions over the past decade. The trend corresponds to, among other things, the new clinical treatments for pain and new surgical procedures that the United States Food and Drug Administration (FDA) has yet to approve, even though the medical community accepts their use. Read more.

off-label & wcmsa

Jen Jordan March 2010 thumbnailOff-Label Drugs and Workers' Compensation Medicare Set-Asides, by Jennifer C. Jordan, Esq. With the addition of Part D to the Medicare program in 2006, Medicare set-aside allocations ("MSAs") grew exponentially overnight. The problem was further exacerbated by the April 9, 2009 CMS memo mandating that the preferred method of drug pricing was the use of average wholesale price and that there would be no discounting for things such as patent expirations or off-label indications. Despite guidance published on June 1, 2009 stating that consideration would be given to issues potentially influencing the future drug use or cost thereof, CMS proceeded to require funding of the last known drug regimen at AWP pretty much without a second thought. Read more

off label cases

Stethoscope GavelHere's a list of some interesting cases we found on off label use of prescription drugs in workers' compensation cases. Note: subscribers can link to the cases below. Be sure you're logged onto your account.


California: Reeds Market v. Workers' Compensation Appeals Board, 2003 Cal. Wrk. Comp. LEXIS 207. The claimant's treating physician prescribed Actiq for the off-label purpose of alleviating the complex regional pain syndrome associated with a compensable knee injury. The Workers' Compensation Appeals Board (Board) determined that the cost of that drug was compensable despite the Physicians' Desk Reference stating that that drug could be prescribed only for cancer patients. The Board concluded that the treating physician demonstrated that off-label use of drugs is common and that prescribing Actiq was appropriate. The Board observed further that the claimant's employer did not present medical evidence that prescribing the claimant Actiq was inappropriate. Read more


Larson's spotlight: 5 recent cases you should know about

5 spotlightLarson's Spotlight reports noteworthy workers' comp cases each week. This list was compiled by Thomas A. Robinson, a staff writer for Larson's Workers' Compensation Law, the nation's leading authority on workers' compensation law. 


Tom Robinson thumbnail 



 > Read the summaries & court decisions.


1. OR: Home-Based Worker Who Tripped Over Her Dog Sustained Injury Arising Out of Employment


2. AR: Worker's Injuries While Walking to Smoking Area Were Not Compensable


3. NY: No Death Benefits For Husband's Fatal Heart Attack in Spite of Presumption of Compensability


4. OH: No Loss of Use of Foot Where Worker Was Able to Bear Weight on Foot and Walk With Difficulty


5. TX: Truck Driver Is Not a "Domestic Employee"  

blogS at the lexisnexis workers' comp law community
Fraud SignWorkers' Comp Fraud Blotter - Recent Arrests, Charges, Convictions, and Investigations (6/9/2011). Read it.


Brad Bleakney2011 Illinois Workers Comp Reform Employer PPO Plans, by Brad Bleakney, Esq. Read it.   

Stuart ColburnReview of 2011 Texas Legislature 82R House Bills and Senate Bills, by Stuart Colburn, Esq. Read it.
how to achieve medicare secondary payer compliance

 MSP Red CC 

The Complete Guide to Medicare Secondary Payer Compliance

Jennifer C. Jordan, Esq., Editor-in-Chief

To order, go to


Medicare Secondary Payer Compliance is an elusive area of law - tucked away in various public laws, statutes, regulations and CMS guidance materials.


Worse, many people don't realize that the CMS approval process for MSAs is voluntary-and carries an inherent cost.


That's why you need this all-in-one handbook ...


Authored by the leading expert in the field of the MSP, "The Complete Guide to Medicare Secondary Payer Compliance" is the only available resource written by an industry insider with a deep understanding and practical knowledge about this highly complex and evolving area of the law.


For the first time, you'll find all relevant pieces of the law in one accessible place. And by understanding what CMS wants-and why it wants it-you'll be better able to:

Take control of your insurance settlements

Avoid pitfalls, delays and penalties

Comply with reporting requirements


You'll also learn that CMS' preference may not be the only way to achieve MSP compliance.


Attorneys agree! This is the first comprehensive resource for achieving Medicare Secondary Payer Compliance.


"Ms. Jordan and her contributors provide concise, practical analysis of the multiple layers and nuances of Medical Secondary Payer compliance. The Guide is a valuable resource for plaintiff and defense counsel, as well as insurance carriers, employers, and third party administrators."


- Ronald E. Weiss, Esq., Hamberger & Weiss, Rochester, New York. 


"The range of topics included in the book and updates is a beacon of wisdom in the confusing MSP compliance field."


- Tim Nay, Esq., Law Offices of Nay & Friedenberg, Portland, Oregon. Mr. Nay is a co-founder of the National Alliance of Medicare Set-Aside Professionals (NAMSAP). 


"I have a copy of Jennifer Jordan's book The Complete Guide to Medicare Secondary Payer Compliance and I am most impressed by same! I have recommended it to a number of attorneys here in Georgia."


- Richard C. Kissiah, Esq., Kissiah & Lay, Alpharetta, Georgia. 


"Finally, someone delivers a clear, concise reading in this area, with some definitive answers for both lawyers and claims specialists and accurate reporting dealing with MSP compliance and MSA allocations with all of the necessary resources found in one place."


- Brad Bleakney, Esq., Bleakney & Troiani. Read his complete review at Illinois Workers Compensation blog.

An excellent new book ... a one-of-a-kind resource ... [Jennifer C. Jordan's] straight-talk is much appreciated when it comes to this illusive area of the law." 


- Rebecca Shafer, JD, President, Amaxx Risk Solutions, Inc.

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Implementation of the MMSEA reporting program is underway. Don't wait to order!

> Read more about the contents (1,350 pages). List Price: $179


state news

AL: Governor Signs Bill to Crack Down on Illegal Immigrants.

AR: NCCI Reports Decrease in Loss Costs.

CA: Senate Committee Passes AB 397 Regarding Contractor Proof of Coverage.

CA: AB 950 Misclassification of Port Drivers Tabled.

CA: AB 584 Utilization Review California-Licensed Physician Requirement Re-referred to Committee.

CA: A.M. Best Reaffirms Ratings for Zenith Insurance Company and Subsidiaries.

CA: Cal Chamber, Coalition Oppose Proposed Elimination of Cal/OSHA Board.

CA: DWC Reports Pharmaceutical Pricing Calculator, Data Download File Affected by Error on Medi-Cal Database.

CO: State Auditor Says Pinnacol Fulfilled 14 Recommendations for Operational Changes.

CO: Insurer Files Suit Against Denver Broncos, Nine Players, Over Workers Comp Claims.

DC: Former Blackwater Employees File Lawsuit Alleging Misclassification.

FL: DWC Proposes Rules to Regulate Overutilization.

GA: SBWC Issues Notice Regarding Delinquent Case Progress Report Penalties.

IL: A.M. Best Warns Workers Comp Reforms May Not Solve Judicial Concerns.

IL: Governor Names Messmore Acting Insurance Director.

IL: Seven Insurers Back AIG Settlement for Underreporting of WC Claims.

IL: Aldermen Say Random Drug Testing on Chicago Employees Will Reduce Workers Compensation.

IL: 59 Workers Comp Claims File by Menard Prison Guards in 2011.

IN: Sharon F. Murphy, Lewis Wagner LLP, Elected President, Board of Governors, College of Workers Compensation Lawyers.

LA: Two Fraud Investigators Shot and Killed While Conducting Investigation of Insurance Agent.

ME: Legislative Panel Votes to Endorse Winglass as Labor Commissioner.

MD: Attorney DuBois Installed as Member of College of Workers' Compensation Lawyers.

MO: Second Injury Fund Stops Payments to Injured Workers, Insolvency Pending.

MO: Chamber of Commerce Seeks to Intervene in Second Injury Fund Lawsuit.

NE: WCC Posts 2001-2010 Statistical Reports.

NV: SB 208 Creation of Misclassification Task Force Passed by Legislature.

NV: SB 207 Misclassification Administrative Penalties Passed by Legislature.

NH: LGC Approves $17M Repayment of Funds Used to Support Workers Comp Program.

NH: Investigator's Attorney Calls LGC's Repayment Plan "Smoke and Mirrors".

NJ: NJCRIB Appoints New Executive Director and Associate Executive Director.

NJ: DWC Posts Updated Contact Lists: Insurance Carrier/Self Insurer, Public Sector.

NJ: Coalition Calls for Single-Payer Plan, Follow Vermont Lead.

NY: Ins. Dept. to Hold Public Hearing on 10.4% Increase in Workers Comp Loss Costs.

NC: HB 709 Workers Comp Reforms Heads to Governor.

OH: Governor Appoints Dave Johnson to Ohio BWC Board of Directors.

OH: Worker May Pursue Common Law Claim for Retaliatory Firing After Reporting Workplace Injury to Employer.

TX: SB 158 Regarding Physician Dispensing Sent to Governor.

TX: SB 321 Guns in Employers' Parking Lots Sent to Governor.

WV: BrickStreet Mutual Reports 35.7% Increase in Profits for 2010.

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off label cases, continued...


Vannoy-Joseph v. State of Connecticut Department of Mental Health and Addiction Services, 2008 Conn. Wrk. Comp. LEXIS 7. The recommended three-level disc replacement surgery related to compensable degenerative disc disease was off-label because the U.S. Food and Drug Administration (FDA) had not approved the ProDisc device for that procedure. The Compensation Review Board (Board) was unconcerned that the use was off label but determined that the claimant not showing adequately that the proposed procedure was scientifically valid under the current circumstances required additional proceedings. The Board referred to a court opinion that stated that "a physician may prescribe a legal [device] to serve any purpose that he or she deems appropriate, regardless of whether the [device] has been approved for that use by the FDA." The Board bolstered that theory by referring to the portion of 21 U.S.C.S. 396 that states that the Food, Drug and Cosmetic Act does not "limit or interfere with the authority of a health care practitioner to prescribe or administer any legally marketed device to a patient for any condition or disease within a legitimate health care practitioner-patient relationship."


Magee v. Thompson Creek Mining Company, 133 P.3d 1226. A physician prescribed off-label use of Colchicine for the claimant's compensable acute low back pain, stretched sciatic nerve, and SI joint disruption. That physician described Colchicine as an "old anti-inflammatory" that reduces nerve and tissue swelling, but U.S. Food and Drug Administration approval of that drug was limited to treating acute gout. The state supreme court determined that the Colchicine use was no longer compensable because that form of continued treatment was not medically necessary. The state supreme court commented that the claimant did not meet his burden of proof, which including showing that receiving Colchicine resulted in gradually improving his condition.



Brainard v. Lawrence Paper Company, 2009 NE Wrk. Comp. LEXIS 17. The claimant's employer challenged the compensability of off-label use of anti-seizure drugs to alleviate post-traumatic headaches associated with a work-related head trauma. The workers' compensation court determined that the off-label use was valid, noting that the claimant's treating physician showed credibly that the anti-seizure drugs affect brain receptors that are a factor in the claimant's headaches. The court noted as well that the physician showed additionally that that off-label use was effective and common and that the U.S. Food and Drug Administration had only approved the drug Propanolol to treat headaches.


New York

Hillside House of Coeymans and Travelers Casualty & Surety Co., 2006 NYWCLR (LRP) LEXIS 181. The claimant's using Actiq for pain associated with compensable injuries to both knees was off label because approved use of that drug was limited to cancer patients. The Workers' Compensation Board Panel decided that that use of Actiq was non-compensable because the claimant's employer presented credible evidence that the claimant was taking an oral opiate medication and that Actiq could become addictive and/or interfere with other pain medication that the claimant was taking.



Sugardale Foods, Inc. v. Industrial Commission of Ohio, 738 N.E.2d 1238. The claimant's self-insured employer asserted that it lacked workers' comp liability for the claimant's 1994 Steffee plating surgery. The controversy stemmed from the general policy of the Bureau of Workers' Compensation (BWC) in Ohio that that procedure, which lacked U.S. Food and Drug Administration approval in 1994, was generally considered too experimental to be approved for claimants that the State Fund covered; the employer argued that the clause in Ohio Rev. Code 4121.31 that required that the Industrial Commission of Ohio (Commission) uniformly process medical claims against the State Fund and self-insured employers provided that self-insured employers should not be required to pay for medical procedures that the BWC would not approve for claimants who the State Fund covered. The state supreme court determined that the surgery was compensable, quoting the Commission's finding that "all medical evidence on file supports" the claim for the surgery. The state supreme court stated additionally that the BWC based its general policy of not approving payment for procedures that lacked FDA approval or were considered experimental on Ohio Rev. Code 4123.32(D), which the state supreme court described as providing a guideline rather than a binding requirement. The state supreme court added that that "policy could reasonably be disregarded when medical evidence removes the usual justification for rejecting these claims."


Bax Global, Inc. v. The Industrial Commission of Ohio, 2007 Ohio 695. The artificial disc that a surgeon implanted in the claimant was an off-label use of that disc because the U.S. Food and Drug Administration (FDA) had not approved using that disc at the specific level of the claimant's spine where she was experiencing disc degeneration. The court of appeals concluded that the disc-replacement surgery was compensable despite being off label because it was appropriate treatment considering the ineffectiveness of non-surgical options, the operation that was performed on the claimant had been conducted successfully in Europe for years, and the FDA does not limit using medical devices to officially approved purposes.



Tarraferro v. State of Wyoming, 123 P.3d 912. The claimant taking Marinol to alleviate pain associated with a compensable pelvic crush injury was off-label because Marinol's approved use was limited to cancer and AIDS patients. The state supreme court determined that the Marinol prescriptions were compensable despite the off-label use because the claimant showed that taking that drug was a reasonable and necessary non-experimental approach that pain management specialists used to alleviate severe and persistent pain. The state supreme court commented further that the U.S. Food and Drug Administration (FDA) has determined that the Federal Food, Drug and Cosmetic Act limiting labeling and marketing medications "for only those uses for which the drug's safety and effectiveness have been established" does not prevent prescribing an FDA-approved drug "for uses or in treatment regimens or patient populations that are not included in approved labeling."  

Take a deep dive into our past eNewsletters for 2011 and prior...warning - some links to articles may not any linking problems to

June 6, 2011: Transgender Issues 

May 31, 2011: Cell Phone Distractions

May 23, 2011: FECA Reform Proposals; Benefits Review Board Update

May 16, 2011: Full Face Transplant; Medical Foods; P&C Industry Trends 

May 9, 2011: State of the Line; Workers Comp Trends 

May 2, 2011: Prescription Drug Abuse 

April 25, 2011: Radiation Exposure; Medical Fee Schedules

April 18, 2011: FECA Reform 

April 11, 2011: NCCI's 2011 Workers' Comp Issues Report 

April 4, 2011: Workers' Comp Centennial

March 28, 2011: Medicare Secondary Payer Reform Legislation; LHWCA Comp Rates 

March 21, 2011: Triangle Shirtwaist Factory Fire 

March 14, 2011: Medicare Set-Aside & Special Needs Trust; Union Battle 

March 7, 2011: 50 State Labor Law Ranking; Illegal Aliens & Workers Comp 

February 28, 2011: Union Battle 

February 21, 2011: Erectile Dysfunction in Workers Comp Claims 

February 14, 2011: Workers Comp Notable People 2010 

February 7, 2011: Workers Comp Centennial; NCCI's Gauging the Economy 

January 31, 2011: Medicare Set-Aside Allocations; Workers Comp Soft Market 

January 24, 2011: Sex, Lies & Videotape - Injured Worker 

January 17, 2011: FECA & Workers Comp Waste; Medical Residents; AMA Guides
January 10, 2011: Top 10 Bizarre Cases for 2010 

January 3, 2011: Depression and Delayed Recovery 



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