PHILADELPHIA BAR ASSOCIATION RESOLUTION OPPOSING PENNSYLVANIA HOUSE BILL 1800, PRINTER'S NUMBER 2681
WHEREAS, Pennsylvania House Bill 1800, Printer's No. 2681 ("H.B. 1800") proposes multiple amendments to the Workers' Compensation Act, Act of June 2, 1915 (P.L. 736, No. 338; and
WHEREAS, the proposed legislation includes amendments that would fundamentally transform the delivery of medical treatment to Pennsylvania's injured workers by imposing supposed "evidence-based medical treatment guidelines" in an effort to control costs; and
WHEREAS, the Sponsorship Memorandum posted electronically on November 5, 2015 by Representative Ryan E. Mackenzie addressed to All House Members under subject hearing "Workers' Compensation Treatment Guidelines" (http://www.legis.state.pa.us//cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=H&SPick=20150&cosponId=19228) lists four purported advantages accruing from the adoption of evidence-based medical treatment guidelines: controlling costs, mitigating the frequency of surgery, reducing addictive medications, and enhancing return-to-work outcomes for thousands of injured and disabled workers.
WHEREAS, the first two purported advantages, controlling costs and mitigating frequency of surgery, have already been addressed in Pennsylvania law via the Fee Schedules and the Utilization Review process; and
WHEREAS, the third purported advantage, reducing addictive medications, has been addressed comprehensively by the Legislature in Act 2014-184; and
WHEREAS, there are no epidemiological studies demonstrating the validity of the evidence-based medical treatment guidelines proposed in H.B. 1800, or that such guidelines would enhance return-to-work outcomes; and
WHEREAS, while evidence-based medical treatment guidelines may inform a physician's care of a patient, H.B. 1800 would impose such treatment guidelines as a requirement, undermining patient confidence in their physician's ability to provide high-quality care based on the physician's clinical experience and the patient's individual needs;
WHEREAS, the "one size fits all" approach to an injured worker places them at risk of losing individualized treatment and therapy for their specific injury, which would have a higher likelihood of reducing disability; and
WHEREAS, the application of rote evidence-based guidelines on treatment may reduce the number of medical providers willing to accept workers' compensation patients for treatment, which will in turn restrict access to medical care for those injured workers; and
WHEREAS, the goal of cost control is a solution in search of a problem, in that Workers' Compensation rates in Pennsylvania have been decreasing each year since 2012; specifically, the loss cost filings, which are the base line premium variable that is used to calculate insurance premiums for employers, have decreased since 2012 as follows: 2012 - decreased 5.66%; 2013 - decreased 4.01%; 2014 - decreased 5.15%; and 2015 - decreased 0.90% as reported by the Pennsylvania Compensation Ratings Bureau;1 and
WHEREAS, H.B. 1800 purports to give injured workers the ability to challenge the reasonableness or necessity of any medical treatment through the proven Workers' Compensation utilization review process; and
WHEREAS, Pennsylvania law already sets forth well-established procedures by which the employer and carrier may request Utilization Review; an employee's right to request a prospective Utilization Review; and all parties' rights with respect to judicial review of the same; and
WHEREAS, H.B. 1800 would task the Secretary of Labor and Industry with appointing a diverse panel of medical providers to review and propose modifications to the adopted guidelines; and
WHEREAS, H.B. 1800 may include an unconstitutional delegation of legislative authority to a "panel of medical providers" as the bill requires the Department of Labor and Industry to "…allow modifications of the guidelines based on a panel of providers…"; and
WHEREAS, this appointment diminishes the judicial autonomy of the Workers' Compensation Judge as the arbitrator and final fact finder by pre-determining the credibility of medical evidence based on the opinion of an appointed panel; and
WHEREAS, implementation of evidence-based "standards" in other jurisdictions has resulted in what would amount to infringement upon the parties' constitutional right to due process in this Commonwealth;2 and
WHEREAS, further violation of due process would occur due to the selected standards being immune from challenge by employers, carriers, and injured workers.
NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association opposes House Bill 1800, Printer's No. 2681, and any similar legislation; and
BE IT FURTHER RESOLVED that the Chancellor and/or the Chancellor's designee(s) communicate the Philadelphia Bar Association's position on House Bill 1800, Printer's No. 2681, and any similar legislation to the Governor, the General Assembly and the public and take whatever action is necessary to effectuate this resolution.
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: March 31, 2016
2 Aurora Consolidated Health Care v. Labor and Industry Review Commission, 340 Wis. 2d 367, 814 N.W. 2d 824 (2012). The employer was prevented from cross-examining a physician appointed by Wisconsin's equivalent of the Department of Labor and Industry. That prohibition was affirmed by the Wisconsin Supreme Court.