What Will the Next 30 Years Teach Us?

Thursday, January 7, 2016 | 0

The Center for Disease Control appears to be quietly working on guidelines for physicians prescribing opioids. There are a few truths that influence the debate and likely there are some misconceptions and misperception also. One truth is that bodily injury can result in pain. Anyone that has ever so much as suffered a stubbed toe can testify on this point.

David Langham

From that point, however, the debates can become heated. How long will pain last? How can pain be best controlled? What are the detriments associated with various treatments for pain? Is holistic better that pharmaceutical? Should it be therapy, adjustment, feedback, pharmacy? There is no shortage of points for discussion.

The current debate at the CDC was featured in a WorkCompCentral article in late November. The CDC is reportedly moving towards a standard regarding how much opium is appropriate for the treatment of pain. It has not reportedly been a rapid process.

Government can move nimbly when it decides to, as it has demonstrated recently with its pursuit of regulation for remote control toys. It's possible that calling them "toys" is pejorative, as these toys have the potential to cause harm, but it seems to pale compared to the known harm that opioids can cause (see EForce and Kasper, and What Worthwhile can you do in 11 Minutes).

We know that an airliner could be damaged in the event of a collision with a drone. There have been reports of these drones close to airports and airliners. If an airliner were damaged and a crash resulted, hundreds of people could die, and that is serious. While registration of drones may or may not address that threat, the point is that the Federal Aviation Administration perceived a potential threat and has acted very rapidly to address its registration concerns.

The threat on the pharmaceutical side is not hypothetical or merely probable. The simple fact is that opioids are currently killing thousands of people every year. This detriment is real, current, credible and serious.

Despite this, the CDC effort is not moving as rapidly as the drone regulation effort. According to sources quoted in the WorkCompCentral article, the disparity may arise because the opium industry is more established, politically powerful, and resistant to the establishment of guidelines. A copy of the proposed guidelines is here.

One interest group that has criticized the CDC effort is the American Cancer Society. 

Opium: Help and harm

Some illnesses are excruciatingly painful and without a cure, and cancer is one. Anyone who has witnessed someone experiencing end-stage cancer is likely thankful for opium. Anyone who has watched a family member or friend live through that end is likely to conclude that such patients should have access to as much as they want of whatever they want to relieve their pain.

But the cancer argument is a red herring. The proposed guideline excludes that paradigm at the outset, saying these guides are for physicians prescribing for "chronic pain outside of end-of-life care."

Opium use for pain in America is nothing new. Its use dates at least to the Civil War, more than 150 years ago. (An interesting PowerPoint on the history of opium is here.) But the current state of affairs with opium appears to have begun in earnest in the 1980s with advocacy for opium use to treat chronic pain for cancer patients. It was found effective for end-stage cancer. An unfortunate feature of the cancer paradigm is that long-term effects of opium were not studied; long-term use is not a risk in end-of-life usage. The great boon to cancer patients has no corresponding "long-term risk" counterbalance.

In the 1990s, this usage advocacy spread to the treatment of chronic pain for injuries. This paradigm does have the "long-term risk" implication. The use for chronic pain naturally implicated workers' compensation, a population of people with injuries; the encroachment into workers' compensation was entirely logical.

The results have been troublesome in some regards, though -- people are dying from prescription medication. Those who study drug abuse tell us that opioids (if they themselves do not kill the patient) are leading people to street drugs like heroin.

These disturbing results come from a widely studied and accepted substance that has been approved in many forms by the Food and Drug Administration. 

But, of course, there are risks associated with opium -- not least among them, its highly addictive nature -- and 30 years after its use began to escalate in workers' compensation, the industry is beginning to take those risks seriously. Workers' compensation now searches for solutions for a population at risk of harm from, or already addicted to, opioids.

The medical marijuana question

Marijuana is recently becoming part of workers' compensation. As we reflect on the history of workers' compensation opium, we stand at the dawn of medical marijuana. In 30 years, the marketplace will have the benefit of retrospection to appreciate how marijuana affects people. In 30 years, we will know whether it is a boon or a bust. Could marijuana be a solution to pain treatment, or will we perceive it in retrospect the way we perceive opioids today? Will it take us 30 years to know the answers?

A recent study from the Cambridge journal Psychological Medicine provides some interesting insight into effects of marijuana. Since marijuana has its nose under the proverbial tent of workers' compensation, we might be well served to begin to understand the potential implications of its use.

There has been a trend of legalizing medical marijuana in various states. In 2016, we see credible indications that it may spread to Florida. Recently, we have heard of states moving to include "pain" as justification for marijuana use in other states; one of the current Florida proposals includes pain as a justification. Marijuana could become a drug of choice for treating workers' compensation pain.

The "legalization" is intriguing because marijuana is illegal under federal law. When states have taken a stand regarding opium, the federal government has intervened to impose federal law instead. When states have similarly taken a stand to legalize marijuana, the federal government has taken a hands-off, "don't ask, don't tell" approach. The incongruity of these seemingly divergent federal approaches is interesting. History will judge whether either posture was appropriate.

Medical marijuana became a credible workers' compensation issue in 2015 after a case in New Mexico. A man informed his doctor that he was already (illegally) using marijuana, and the doctor recommended he continue to use it to treat his pain. The first point of contention is that the doctor did not prescribe marijuana. The second is that the doctor did not identify a problem for which he/she would independently recommend marijuana.

The doctor's logic was apparently that the patient would use the substance in any event, and the doctor's recommendation (not "prescription") would allow that use to be "legal" under state law -- which is to say, the doctor's recommendation would render the existing illegal use "medical marijuana."

This is curious. Tell your physician you have resorted to heroin and ask that she/he recommend heroin so that you can obtain and use it legally. How would a physician react to that? Some will say this is not a valid argument because "it is only marijuana." Time will tell if that is valid or not.

Following this medical recommendation, the injured worker asked a New Mexico judge to require his employer to pay for the (now) medical marijuana. There is a rub here. Because marijuana is illegal in the U.S., a variety of federal laws come into play. One avenue that the federal government has used to combat marijuana is banking laws. Bankers that do business with drug dealers face restrictions and complications. Whether states (or the DEA for that matter) enforce federal laws or not, those who sell marijuana are nonetheless still drug dealers in the eyes of the federal government.

The New Mexico judge did not order the employer to buy marijuana for the injured worker. Instead, the judge ordered the employer to reimburse the injured worker for marijuana he himself had purchased. This removed the employer from the role of doing business with drug dealers, and allows the employer/carrier to merely reimburse someone who does business with drug dealers. This opened another interesting debate on the role of illegal marijuana in workers' compensation.

The decision compelled New Mexico to lead the nation in an effort to regulate medical marijuana in workers' compensation cases. WorkCompCentral reported in October that the regulations are now in place. Medical marijuana-using injured workers in New Mexico may be reimbursed for up to eight ounces per quarter, or two pounds of marijuana per year. Some have posited that this is a notable (some say excessive) quantity.

How do we measure things, though? I recently noted that some measures may be more effective than others. Different strains of marijuana have different chemical compositions and therefore different strengths. There is no grading or "proof" as we see with alcohol.

So, the New Mexico regulation could provide you with two pounds of marijuana. How much is that? Well, how many cigarettes, or "joints" are in an ounce? The Weed Blog says you cannot answer that. It is like "How many drinks are there in a can of soda?" The answer is, "It depends on how large the drinks." How many joints there are in an ounce depends on how large the joints are.

What about alcohol?

What if a physician recommended alcohol for the treatment of chronic pain? Before this is decried, consider whether it is really that different than the New Mexico physician's recommendation. A patient presents with pain, admits self-medicating with alcohol, and the doctor therefore recommends it as a treatment (as our New Mexico doctor concluded, the patient is using it anyway, so why not?). What then if New Mexico (sorry to pick on them, but this is the reality) decided to quantify how much alcohol is an appropriate annual limit?

It would be absurd to define in a way that is not uniform, such as a "case" or "bottles," of alcohol. A case of liquor might be six bottles or might be 120, it depends on how much is in each bottle. So, like the methodology for marijuana, might we measure in ounces? That is, instead of allowing two cases of alcohol annually, might the state allow 614.4 (12 bottles per case times 25.6 ounces) ounces of alcohol annually? Is this a rational measure?

Anyone who has consumed alcohol can tell you that how much is enough (or too much) depends on how strong the alcohol is. As the National Institute on Alcohol Abuse and Alcoholism notes, "the amount of liquid in your glass . . . does not necessarily match up with how much alcohol is actually in your drink." The Institute says that beer has 5% alcohol content, malt liquor has about 7%, wine about 12% and liquor has 40% (80 proof) to 95% (Everclear, 190 proof).

So, if your 614.4 ounces of medical alcohol was beer, that would be one thing. If it was Everclear medical alcohol, that would be something else entirely. The 614.4 ounces of beer, at 5% would be 30.7 ounces of actual alcohol. The 614.4 ounces of Everclear would be 584 ounces. Very different outcomes, depending on the strength of the particular product being consumed.

Is it logical to measure usage based solely on volume? That you may have two pounds of marijuana each year is about as logical as saying you may have 614 ounces of alcohol each year. Both are objective, measurable, and utterly irrelevant without a definition of what we mean by "alcohol," that is beer versus Everclear. "Marijuana" is likewise not a generic, all-encompassing term. Some may be stronger. In deciding how much is appropriate, would it not make sense to have some measure of strength?

While that is logical in terms of deciding how much is appropriate, from the state's perspective, would it be any less appropriate from the individuals perspective? Before picking up the glass from the bar, would you not want to know whether the liquid in the glass contained 5% or 95% alcohol? For the sake of your body, would you not want to know the "proof" of what you are taking? From both the patient and state perspective, the "ounces per year" limitations seem ill-advised, poorly defined, and ineffective.

The "opium road"

If long-term opium use had been studied in the 1980s and 1990s, the long-term detrimental effects with which we as a nation currently struggle might have been identified. That was not the apparent path travelled (the "opium road") in America. Instead, without extensive study of the long-term effects and risks, multitudes followed each other off the lemming-cliff of opioid dosing. The results have been marked, with opioid prescription sales quadrupling in the first ten years of this century.

This year, we will see more states venture into the medical marijuana arena. Inevitably, more states will see medical marijuana become implicated in workers' compensation. Those decisions in New Mexico came without study of the implications and risks, and it is unlikely that other states will proceed differently.

Before workers' compensation stumbles into another potential pandemic of sympathetic reaction, it might do well to investigate how to rationally quantify use ("proof" for the intoxicant). When a doctor prescribes opium, she/he does so with a set dose, on a particular schedule, and can measure use. With the current perspective and science on marijuana, that is not occurring and does not appear to be in the cards.

As the "recommendation" of marijuana is upon us, it is unlikely that long-term effect studies can now be undertaken. However, it is possible that such studies already exist elsewhere. Is there science upon which medicine might rely, from countries that relaxed use or legalized earlier, in determining long-term concerns and fixing appropriate dosage?

Should there be definitions of "appropriate" volume now, before marijuana becomes the next opium? The CDC struggles today to define opioid standards, against a backdrop of decades of use; could Marijuana's definitions be set now, at the outset of its involvement in workers' compensation?

George Santayana is credited with saying "Those who cannot learn from history are doomed to repeat it." We have learned a great deal about opioids in the last 30 years, the hard way. What will the next 30 teach us about marijuana?

David Langham is chief deputy judge of the Florida Office of Judges of Workers' Compensation Claims. This column was reprinted with his permission from his Florida Workers' Comp Adjudication blog.