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HB 1800 (Evidence-Based Medicine): More Questions Than Answers

Thursday, June 23, 2016   (0 Comments)
Posted by: Craig Giangiulio
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Workers’ Compensation – Message from the Chair

Daniel K. Bricmont Esq.
dbricmont@cbmclaw.com

In my capacity as chairelect of the Pennsylvania Bar Association Workers’ Compensation Law Section, I had the opportunity to provide testimony to the House Labor and Industry Committee on March 17, regarding proposed amendments to the Workers’ Compensation Law contained in House Bill 1800. The bill proposes to add evidence-based medicine treatment guidelines to the definition of what medical care would be deemed reasonable and necessary for payment under the Workers’ Compensation Law. I was joined in my testimony by attorney Mike Routch, who primarily represents employers and insurers. Significantly, the PBA, following a recommendation from the Workers’ Compensation Law Section, adopted a resolution to oppose House Bill 1800 or similar legislation concerning the imposition of evidence-based medicine treatment guidelines for workers’ compensation claimants.

The hearing on March 17 revealed many more questions than answers regarding the procedure and effect of adding an evidencebased medicine standard to workers’ compensation medical treatment.

The Labor & Industry Committee heard testimony at the beginning of the day from Deputy Secretary Mike Vovakes and Bureau Director Scott Weiant, who outlined the department’s opposition to HB 1800. In summary, the department’s position reflects the fact that lost cost filings, which are the baseline premium variable used to calculate insurance premiums for employers, have decreased every year since 2012. In addition, the medical cost containment regulations already in effect have decreased costs, and utilization review filings have been on the decline, suggesting that there is a downward trend with regard to carriers actually challenging medical treatment.

The Labor & Industry Committee also heard testimony which raised significant questions concerning bias within medical research funding, both in the sense of questioning what actual medical procedures and treatments are being researched, and more substantive concerns over whether results reflect bias towards the entities funding the research.

My testimony highlighted additional questions raised by this legislation, including the likely impairment which would result to the doctor-patient relationship if doctors are deemed limited in their treatment options based upon the guidelines adopted. Recent amendments to the Workers’ Compensation Act—Act 184 of 2014 addressing physician prescription dispensing, as well as the Centers for Disease Control’s recent guidelines on the prescription of opioids—should have time to take effect before a new set of regulations are imposed on the system. In addition, there are questions regarding due process concerns. Currently, due process is afforded to both parties by the ability to have a neutral judge resolve disputes in which both parties have equal opportunity to cross-examine witnesses and offer evidence of a specific patient’s condition which would support approval of care. The proposed bill, however, is silent on how or whether a claimant would be able to challenge the evidence based guideline as it applies to a specific patient. Our testimony also emphasized the chilling effect such regulations would have on the medical community, both in terms of medical providers who may be less willing to treat patients with work-related injuries, so as to avoid limits on their decision making, or medical providers who may steer care towards private or government agency health plans as a method to avoid such limitations. In addition, the amendment may significantly increase costs on claimants, who would now have the first burden to bring challenges to a determination on the extent of their medical care, costs which claimants are generally not capable of bearing, particularly if they are unrepresented.

There are also procedural concerns, including the delegation of legislative authority to a medical/academic panel which would be powered to set the standard, and the challenge of medical malpractice exposure for the medical community, which under tort law is required to treat the patient as they come, but under HB 1800, would be limited to the treatment guidelines. Consider the implications of a doctor’s initial diagnosis of a “strain/sprain;” would the doctor be limited to treatment based only on the initial or partially informed diagnosis? These concerns are not answered by HB 1800. Significantly, the procedural process for obtaining a variance or exception to the guideline is not addressed by HB 1800, nor are the concerns of cost shifting. Specifically, where an injured worker reaches the end of the evidence based treatment but has not recovered, medical expenses incurred at the end of the guidelines would not be compensated under the Workers’ Compensation Law. In all likelihood, such additional treatments will then fall under a group health plan, incurring out-of-pocket expenses and copayments which the injured worker should not have to bear for the treatment of work-related injuries. Similarly, experience teaches us that there will be a variety of work-related injury claims that are initially not accepted by the insurance industry. These patients will receive care under their group health plans while litigation ensues to determine the compensability of the claim. In this scenario, once a claim is decided in the worker’s favor, will the evidence-based treatment guidelines prevent complete repayment or subrogation for the worker’s group health plan?

Based on my observations at the time of the hearing, I believe even the proponents of HB 1800 realize this bill will have to be significantly amended before such a radical change in the delivery of health care to injured workers would be adopted. However, regardless of what amendments may be offered, the basic premise of “evidence-based medicine” for injured workers is a flawed concept we must strongly oppose. Should PAJ members have occasion to speak to their representatives, we need to express our strenuous opposition to HB 1800 and urge our legislators to vote NO.

Dan Bricmont of Caroselli, Beachler, McTiernan & Coleman, Pittsburgh, is Chair of PAJ’s Workers’ Compensation Section.

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