Pennsylvania Workers Comp Doesn’t Need Evidence-Based Medicine (Not Like This)

“Evidence-based medical treatment guidelines” sounds like such a good idea. Who would want medical treatment that wasn’t based on evidence?

The problem is in the details. Way back in 1996, when “evidence-based medicine” was coming to the fore, the originators of the concept went out of their way to say “evidence-based medicine is not cookbook medicine,” and that it can “never replace individual clinical expertise and it is this expertise that decides whether the external evidence applies to the individual patient at all, and if so, how it should be integrated in a clinical decision.”

Fast-forward twenty years, and now the Pennsylvania General Assembly is considering whether to use evidence-based medicine as the sort of “cookbook medicine” it was never meant to be.

Workers compensation is supposed to be simple and reliable, but it rarely is, and the fights often revolve around whether the worker’s medical care is “reasonable and necessary.” As the law stands now:

[O]nce a compensable work injury is proved or acknowledged, the employer bears the burden to establish through the utilization review process that medical expenses are unnecessary or unreasonable. Thomas v. Workers’ Compensation Appeal Board (School District of Philadelphia), 153 Pa.Cmwlth. 560, 621 A.2d 1192 (1993). Utilization review is performed by a reviewer who is licensed by the Commonwealth in the same profession and with the same specialty as the provider whose treatment is under review. Section 306(f.1)(6) of the Workers’ Compensation Act (Act);[3] 34 Pa.Code § 127.466. The report generated by the reviewer becomes part of the record, and the WCJ shall consider the report as evidence but will not be bound by it. Section 306(f.1)(4) of the Act, 77 P.S. § 531(6)(4); 34 Pa.Code § 127.556.

Leca vs Workers’ Compensation Appeal Board, 39 A.3d 631 (Pa. Commw. Ct. 2012). In other words, if there’s a dispute over the treatment an injured worker is receiving, then an independent medical provider is called in to take a look, and then the worker and the insurer argue about it in front of a workers compensation judge, who decides the issue. That generally gives the judge a wide scope of medical evidence to look at, all of it coming from doctors, nurses, therapists, and other healthcare professionals giving their judgment about what care the injured worker really needs.

A bill pending in the Pennsylvania House (HB 1800) would redefine “reasonable and necessary” medical treatment in workers compensation cases to be:

those treatments, services, products or accommodations that are consistent with or recommended by evidence-based medical treatment guidelines selected and referenced by the department by publication in the Pennsylvania Bulletin. In selecting the guidelines, the department shall choose from nationally recognized treatment guidelines appropriate for resolving issues relating to treatment for work-related injuries.

If an injured worker wants to challenge the level of treatment they receive, they can still file for a utilization review but, as HB 1800 says, “[t]he purpose of a utilization review conducted pursuant to this section shall be to determine if the treatment is consistent with or recommended by the treatment guidelines…”

What this means in practice is that, if an injured worker can’t point to some published guideline justifying their treatment, then the workers compensation insurance won’t pay for it, regardless of what their actual doctors think, and regardless of what even the independent doctors doing the utilization review think.

HB 1800 does create an exception, however, the type of exception that only a legislator could love: the Department of Labor and Industry “shall allow modifications from the guidelines based on a panel of providers as provided in subparagraph (ii), following public notice and the opportunity for comment,” a panel made up of a medical provider “from each of the following licenses and specialties: (I) Occupational medicine. (II) Orthopedic medicine. (III) Neurosurgical medicine. (IV) Pain management. (V) Physical therapy. (VI) Chiropractic medicine.”

What that means is that workers can maybe get additional treatment if they convince a panel of unpaid, government-appointed doctors who meet once a year to add a particular treatment to the list and then only if the modification survives the lengthy process of “public notice and the opportunity for comment” like changes to actual regulations.

As The Legal Intelligencer reports, HB 1800 is so nuts that “The bill has drawn staunch opposition from many attorneys—both claimants counsel and those representing employers—and the workers’ compensation sections of both the Pennsylvania Bar Association and Philadelphia Bar Association have urged members of the House not to support it.” In case you’re wondering, other states have tried this approach, like Colorado, one of the first, where it “became so difficult for an injured worker to obtain necessary medical treatment that in July 2014 the Colorado legislature found it necessary to amend their workers compensation statute to specifically state that the Medical Treatment Guidelines should not be the sole basis for determining whether treatment is appropriate.”

America’s workers compensation systems are bad enough. The last thing we need is for politicians to play doctor by misunderstanding basic medical concepts like evidence-based medicine, particularly when lawyers on both sides of the issue are telling them to not do so.

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