Commentary

Over the past several months, we have examined proposals the Pennsylvania Chamber of Business and Industry’s workers’ compensation executive committee has made for various legislative changes for the Pennsylvania Workers’ Compensation Act. We have thus far looked at prescription drugs, utilization reviews and managed care. As you may have noticed, many of the proposed reforms tout “lessening the administrative burdens”; however, upon closer inspection, they pave the way for more red tape and delay. The proposals ultimately serve the purpose of gaining more control over the injured worker to save the carriers’ bottom lines at the expense of a person’s well-being.

The next idea, as proposed by the chamber, is benignly titled “Eliminating Administrative Burdens.” The first change the chamber proposes is to consolidate or eliminate extraneous forms under the guise of “improving efficiency.”

It comes as little surprise that the chamber has not indicated what forms it believes are extraneous or redundant. I would agree that there are areas of redundancy and some forms could be eliminated. However, if history is any indicator, I suspect the carriers would want to eliminate those forms that prevent them from abruptly cutting off injured workers’ benefits.

For example, in order to unilaterally suspend an injured worker’s wage loss benefits, the claims adjuster must execute what is known as a “notification of suspension,” which is a proscribed bureau document. This form requires attestation to the fact that the injured worker has returned to work with his or her pre-injury employer at his or her pre-injury earnings within five days of the return to work. The current trend we are seeing is the execution of the document with absolutely no knowledge as to whether the information contained in the document is actually correct.

Executing a document that requires attestation to the facts under the penalty of perjury is serious business. Seemingly, the carriers aren’t worried about the consequences at all. Just last week, I had a defense attorney tell me it is “no big deal” that the claims adjuster knowingly executed this document when my client did not return to the pre-injury employer or at pre-injury wages.

Why such conduct is acceptable or considered “no big deal” is beyond me. Over the years, I have had plenty clients who have made mistakes and even a few who have been less than truthful in the completion of required forms.

When the injured worker fills out a form incorrectly, defense attorneys and workers’ compensation judges are quick to throw the book at my client. When the claims adjuster does it, it’s because they are “overworked” or “didn’t fully understand the law.”

Forgive me if I am wrong, but is it not the responsibility of the army of in-house and outside counsel to guide claims adjusters in conducting business in a manner that is consistent with the law? Perhaps not, because if the carriers can sneak a false notification of suspension by an injured worker, who must read the fine print on the back of the document and act within 20 days of receipt, they put themselves in excellent legal posture: The injured worker must now hire an attorney and wait 12-18 months to have a WCJ reopen the wage loss benefits.

I’m going to go out on a limb here and guess that the carriers would also like to eliminate the need to comply with “panel acknowledgement” forms to force injured workers to treat with their panel doctors. As discussed at length last month, the carriers have a significant burden if they’d like to avoid payment for medical treatment to doctors not on their panel within the first 90 days of treatment.

Under the Act 57 amendments, the carrier may avoid payment for treatment rendered by a nonpanel provider following the first 90 days of the injury only if the employee signed a panel acknowledgement at the time of hire and immediately after the injury.

Carriers almost never meet this burden, yet they routinely threaten injured workers that their claims will be denied if they go outside of the panel. What is worse: not only do they threaten this, but they act on it, too. As of 2012, I have not seen an amendment to the act that allows the denial of a claim for a failure to treat with panel doctors. Carriers seem to think it is legitimate and, to be quite frank, I am concerned that the WCJs find this to be a reasonable basis to deny a claim as well.

While I am all for eliminating administrative burdens for both sides, I have to believe that the chamber is really only interested in eliminating those burdens that make it easier to cut off my clients’ benefits. Had the chamber elaborated on exactly which forms it would like to eliminate, perhaps I would not be so inclined to make a speculative guess on the chamber’s direction here. Then again, the chamber has proven to be extremely predictable.

The second way the chamber wants to eliminate the administrative burdens is to allow for the option of making payments or sending forms electronically to the injured worker. No, we are not about to experience Armageddon, but I actually agree with the chamber on this issue.

Law firms and carriers alike are moving to sending everything electronically and I am all for it. It’s cost-efficient and time-efficient — two things we all love. Not every client will have the capability to receive funds or forms electronically, but for those who can, I think this is an excellent idea. Hopefully, it would eliminate a good percentage of the voluminous time spent on missing or late checks. Most of us involved in workers’ compensation would agree that missing checks and an unpredictable postal system take up a significant amount of time that we’d all like to have back. This is certainly something that would take time to implement, but the results would be well worth it.

The third area the chamber would like to propose is to streamline the process for obtaining an IME and set fees for certain services. Streamlining the process does not seem necessary to me. My firm certainly does not get involved in setting them up, but I have a hard time understanding what could be so difficult about it. It’s as simple as setting up any other doctor’s appointment.

Of all the things in the workers’ compensation system that need tinkering, I cannot begin to fathom that scheduling an IME is on the priority list. I also disagree with setting fees or caps for IMEs. We will put ourselves on a slippery slope of setting a standard fee for all experts when the quality of experts is highly variable. There can be no doubt that some medical experts, whether an IME or a treating doctor, are simply more qualified than others. Those doctors ought to be able to charge more for their services. Setting the prices for IMEs or depositions is a bad path to venture down.

Overall, lessening administrative burdens is a goal that we all should have in mind. Administrative burdens cannot be used as a cloak for the chamber’s true objective of protecting their bottom line.  •

Sam Pond is a founder and managing partner of the workers’ compensation and Social Security disability law firm Pond Lehocky Stern Giordano and past president of the Philadelphia Trial Lawyers Association. He can be reached at 215-568-7500.

Allison Wheeler is an associate at Pond Lehocky and concentrates her law practice in the area of workers’ compensation litigation. She can be reached at 215-568-7500.