It now appears inevitable that, after a long battle in the General Assembly, Gov. Tom Corbett will soon sign into law the “Fair Share Act,” which changes Pennsylvania’s court-made law on joint and several liability in third-party personal injury matters to favor defendants over victims.
To those of us who advocate for victims’ rights, the new law is an unfortunate development.
There is a similar battle pending in the Pennsylvania legislature in the workers’ compensation setting. This battle revolves around House Bill 808, which would require injured workers to get treatment from employer-approved physicians for 180 days after the date of the injury. HB 808 could have a devastating effect on the level of care received by injured workers. It would be an unfair law.
Both the Pennsylvania Orthopedic Association and the Pennsylvania Chiropractic Association have opposed the measure. To properly understand the import of the bill, it is essential to understand the current law and the effect even the current law has on injured workers’ rights.
Under the existing law, assuming the employer meets certain notice guidelines, an injured worker must receive treatment from a workers’ compensation panel physician for the first 90 days after the date of their injury. During this period, whatever the competency level of the panel physicians, the employee may not seek treatment from any other source unless he or she expects to pay for the treatment out of pocket. Those who practice in this area of the law call this 90-day period the “captive period.” The period is exactly what it sounds like; the injured worker is literally held captive by the inclination of the panel physician as to the nature of the treatment and level of attention given to his or her injuries.
The flaws of the current system can be highlighted during an effective cross-examination. When cross-examining a panel physician, it is important to focus on the following issues.
First, almost without exception, the panel physician’s practice group earns all or the majority of its income from being placed on employer panel lists. For this reason, the panel physician is beholden to the employer for producing the majority of its livelihood. This, in many instances, can bias the treatment rendered by the panel physician to the injured worker. It is crucial for the claimant’s attorney to develop this financial bias in cross-examination.
Second, almost without exception, the panel physician’s practice group will allow physician’s assistants and not actual medical doctors to guide and dictate the care rendered to the injured worker. This is an obvious cost-cutting measure dictated by the employer and its insurance carrier. During cross-examination, it is important for the claimant’s attorney to focus on each individual visit and whether or not it was the panel physician who was controlling the care or a physician’s assistant. In many instances, three out of four visits are actually conducted by the physician’s assistant.
Third, almost without exception, the panel physician will delay ordering diagnostic testing in the nature of an MRI or an EMG. While I am not suggesting that all cases warrant the ordering of such tests, it is clear that many panel physicians delay ordering them because they tend to validate the subjective complaints of the claimant. This delay can hinder proper care rendered to the injured worker and can actually affect the recovery of the injured worker. During cross-examination, this delay should be highlighted to once again demonstrate the allegiance of the panel physician and the bias behind his or her opinion.
Fourth, when cross-examining a panel physician, I will always ask the following question: “Would you agree that your number one goal in treating this patient was to get them back to work?” Invariably, the panel physician will answer yes. I always find this answer curious because as far as I know, when the Hippocratic oath is translated to English, nowhere it is stated that this should be the goal of the physician. Rather, the goal of the physician should be to heal his patient. I will then ask the physician whether his or her number one goal should be to heal the patient, and then they will always acquiesce and say this should be the number one goal.
The point is not to suggest that a goal of returning to work is unreasonable, but rather it is not the place of the physician. However, in the workers’ compensation panel physician setting, it becomes an unavoidable conflict for the treating physician. From the first visit, the examining physician should be concerned with how to make his patient better, not with how much workers’ compensation benefits the employer and its insurance carrier will be paying.
Outside of family and clergy, the patient-doctor relationship is inarguably the most important third-party relationship we currently have in society. This relationship should not be tainted by a skeptical panel physician. Assuming the claimant has presented his or her own evidence from a competent credible physician, an experienced workers’ compensation attorney should always be able to demonstrate that the opinions of a panel physician are so influenced by his relationship by the employer that it cannot be deemed credible.
Hopefully, the legislature will understand the inherent flaws in the “captive” period and not extend this period beyond the current 90 days to 180 days.  •
Brandon Swartz is a founding partner of Swartz Culleton. His practice focuses on all types of personal injury cases including wrongful death, medical malpractice, civil rights violations, motor vehicle, premises liability, products liability, trucking accidents and workers’ compensation.