The 'Protz' Redemption: 2 Huge Breaks for Injured Workers
ALM Media
Updated
In everyone's favorite weekend afternoon movie on TNT, "The Shawshank Redemption," Morgan Freeman's character, Red, describes Tim Robbins' character Andy's love of geology: "Geology is the study of pressure and time. That's all it takes really. Pressure and time."
This summer, pressure and time paid off for the workers' compensation claimant's bar, twice on the same day: June 20. One of the victories is surely known to all workers' compensation practitioners across the commonwealth by now: in Protz v. Workers' Compensation Appeal Board (Derry Area School District), 6 & 7 WAP 2016 (Pa. June 20), the Supreme Court of Pennsylvania handed down a complete rejection of the current statutory provisions governing impairment rating evaluations, which were found to be unconstitutional. The second victory is surely much less familiar: proposed House Bill 18 was defeated in Harrisburg. It would have severely limited injured workers' access to medical providers and care in a manner that would never be tolerated were it applied to the general public. This article will consider these two developments in tandem as examples of what can be accomplished when pressure and time are brought to bear on injustices.
As most of us in the field now know, the Supreme Court's holding in Protz eviscerates the impairment rating evaluation (IRE) regime that had been in place since 1996. In drafting Section 306(a.2), the General Assembly, perhaps unwittingly, but nevertheless, required physicians conducting IREs to apply the methodology set forth in "the most recent edition" of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment. At the time, the "most recent edition" was the fourth edition. Over the past decades, the guides were updated and revised twice, to the point where the "most recent edition" is now the sixth edition.
The problem was that the statutory provision essentially delegated authority over IREs to the AMA without putting in place any legislative or administrative authority or oversight to ensure that the guides were and remained reasonable and unbiased. At stake is an employer's ability after two years of benefits to seek reduction in a claimant's disability status from total, where there is no clock, to partial, where eligibility for wage loss and medical benefits ends after 500 weeks.
The Commonwealth Court, in a divided opinion, ruled Section 306(a.2) unconstitutional but did not go any further. The Supreme Court did. In a 6-1 decision over a dissent by Justice Max Baer, the court upheld the finding of unconstitutionality and also struck the provision in its entirety from the act: "The Pennsylvania Constitution prevents the General Assembly from passing off to another branch or body de facto control over matters of policy. As we have explained, this is exactly what the General Assembly did in Section 306(a.2). ... We affirm the Commonwealth Court's holding that Section 306(a.2) violates the nondelegation doctrine. Unlike the Commonwealth Court, however, we hold that Section 306(a.2) is unconstitutional in its entirety."
As of now, the practical effect of the decision is that IREs are no longer permitted in workers' compensation cases. Employers seeking to modify an injured worker's disability status from total to partial must go through the adjudicative process, marshal evidence, and prove their case. The General Assembly will most likely return to the drawing board and issue a revised provision to resurrect IREs, but the end result will almost certainly be more thoughtfully crafted than the previous version.
Pressure and time were key to this monumental decision. Mary Ann Protz's work injury occurred in April 2007. Her IRE took place in 2011; modification was granted by a workers' compensation judge (WCJ) in 2012; and the WCAB affirmed in 2014. Her counsel are to be lauded for fighting on after these defeats, working most likely without ongoing pay, as most claimant-side counsel do in workers' compensation, and keeping the pressure on: the Commonwealth Court's decision came out in September 2015, and the Supreme Court validated the ruling in June 2017. The journey took over 10 years in all, inched forward by pressure and time.
The second victory of June 20, is the much less publicized defeat of House Bill 18, proposed in February 2017, by Rep. Ryan Mackenzie (R-Lehigh). Cleverly (actually insidiously), the bill was marketed heavily by Mackenzie and his supporters in the insurance lobby as a means of combatting opioid abuse. But it was really a "Trojan Horse" that if passed would have put in place strict regulations on the ability of doctors to provide and prescribe all manner of treatment and medications to injured workers, not just opioids for pain management. If a prescription (whether opioid or not) fell outside of the regulated permissible list, the worker would have to go through an extended utilization review (UR), during which time the medication could not be prescribed and the outcome of which could further shut the door on the injured worker's access to care.
House Bill 18 is Mackenzie's second try at dismantling protections for workers' compensation that have been in place for over 100 years since the "Grand Bargain" in which workers conceded the right to sue their employers in tort in exchange for what was supposed to be a simpler and more accessible system of ensuring care and benefits for injuries and lost wages. The first time Mackenzie tried was in 2016 with House Bill 1800, which would cabin doctors' discretion and ability to treat patients within "evidence based medical guidelines" rather than their individual medical perceptions and decisions. Instead of the current system where insurers, with their nearly infinite resources, may choose to contest treatment they question, House Bill 1800 would have put the burden on the injured worker, who of course has much fewer resources and much more risk.
Our law firm and its allies saw the threat of House Bill 1800, applied pressure in the media and the political sphere, and defeated the bill in committee. This year, House Bill 18 made it out of committee after a tough battle, then was finally defeated in a minute-by-minute floor fight in Harrisburg. Injured workers and the doctors who care for them are safe for now, but Mackenzie shows no signs of backing down and can take advantage of his party's advantageous numbers in the General Assembly to try again next year.
Pressure and time, applied relentlessly on behalf of injured workers, led to two huge breaks for injured workers in Pennsylvania this June. Narrating a crucial moment in the movie, Red says: "That's all it takes really ... pressure ... and time." This was sly understatement. By then Red knew well the years of modest toil spent in lonely work, cheered by no one, that were spent by his friend Andy to get through prison walls to freedom.
As we know, after all that pressure and time, Andy climbed through the hole he dug through his wall, crawled through five football fields of raw sewage, and made it to Zihuatanejo and freedom. Our ongoing fight for injured workers' rights isn't quite so punishing on the senses, but at the end of the day on June 20, we felt hopeful. Hopeful that we can continue to help injured workers, hopeful that these efforts make a difference for them as well as for others who come after, and hopeful that bad laws can be changed. And as we know, hope is a good thing.
