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Emergency Rate Hike Will Increase System Costs by at Least $163 Million

By J. Todd Foster (Reporter)

Tuesday, January 2, 2018 | 795 | 0 | 48 min read

The Insurance Department’s approval of a 6.06% rate increase stemming from the state Supreme Court’s Protz decision will raise system costs by at least $163 million, the state rating bureau says.

The rate hike nearly negates a 6.2% loss cost decrease that the Insurance Department approved last March, Insurance Federation of Pennsylvania President and Chief Executive Officer Sam Marshall said.

The emergency rate increase is the largest in decades and the first one ever done mid-year, bringing added focus on the insurance industry’s push for a legislative remedy to the Protz defect in Section 306(a.2) of the Workers’ Compensation Act, Marshall said.

“And that may be an understatement of the cost, since it may not apply to self-insureds, which make up half the market,” Marshall said.

The state Supreme Court on June 20 in Mary Ann Protz v. Workers’ Compensation Appeal Board (Derry Area School District) declared Section 306(a.2) unconstitutional as an unlawful delegation of authority, costing insurers their best weapon to reduce long-term exposure to claims.

The justices ruled 6-1 that lawmakers had delegated “unfettered discretion over Pennsylvania’s impairment-rating methodology” to an outside entity.

Specifically, the act’s requirement that physicians use the “most recent edition” of the American Medical Association Guides to the Evaluation of Permanent Impairment violates the constitutional requirement that all legislative power “be vested in a General Assembly, which shall consist of a Senate and a House of Representatives,” the court opined.

Lawmakers in 1996 enacted workers’ compensation cost-saving measures in Act 57, which allowed employers to request impairment rating evaluations (IREs) of workers who had reached maximum medical improvement after receiving 104 weeks of total disability benefits.

If the doctor conducting an IRE found that the work injury caused less than 50% whole body impairment, the worker’s benefits could be moved from total to partial disability status, with benefits capped at 500 weeks. Total disability benefits, conversely, have no cap in Pennsylvania.

Warminster claimants’ attorney Glenn Neiman said it is extremely rare for an injured worker to collect the maximum of 500 weeks of partial disability “before or after Protz.”

“I remain mystified as to this enormous impact that is alleged to have occurred by the Protz decision,” Neiman said.

In his experience, he said, an IRE was simply a tool to entice settlements and accomplished “very little on its own.”

Even after getting an IRE, insurance carriers continued to pursue other avenues, such as turning to earning power assessments, a mechanism for employers to require an injured worker to meet with a vocational expert who does a labor skills analysis and determines if there is another job the employee is capable of doing, Neiman said.

“I have great difficulty in connecting the cause and effect in this matter,” he said.

Meanwhile, lawmakers have introduced two bills that would reinstate the IRE process by using language they believe would pass constitutional muster.

Senate Bill 963, introduced by Sen. Kim L. Ward, R-Westmoreland County, is before the Labor and Industry Committee.

Its Protz fix proposes to replace the “most recent edition” of the AMA Guides to the Evaluation of Permanent Impairment and specify the “sixth edition.”

House Bill 1840, sponsored by Rep. Rob W. Kauffman, R-Franklin, and chairman of the House Labor and Industry Committee, contains similar language.

“The IRE is a nationally accepted means of adjusting to changes that inevitably occur during the course of an employee’s recovery from workplace injury. IREs are used across the country in workers' compensation, as are AMA guidelines,” Ward wrote in a memorandum accompanying her bill.

“IREs have generally served their purpose of bringing structure and fairness to the process of determining circumstances in which claimants can reasonably be expected to transition off wage-loss benefits and when benefits should be paid for the rest of an individual’s life,” she said. “IREs helped stabilize the overall workers’ compensation system in Pennsylvania, which had experienced massive cost increases in the late 1980s and early 1990s.”

University of Wyoming law professor Michael C. Duff, a national workers’ compensation expert, told WorkCompCentral in October that both bills would be unconstitutional if they altered a benefit to which an employee already has been found entitled.

“I think such an employee would have a substantial due process argument … that the state has retroactively deprived a vested property right,” Duff said.

The Pennsylvania Compensation Rating Bureau filed the 6.06% loss cost increase two months after the Protz ruling, concluding that claim costs will grow in the absence of IREs.

Since Act 57 was enacted in 1996, claim costs dropped 21 straight years — a cumulative decrease in loss costs of 62.3%, the bureau’s rate filing states.

“Based on the total direct written premium last year of just under $2.7 billion, 6.06% represents about $163 million,” said John Pedrick, the bureau’s vice president of actuarial services. “But that doesn’t include the costs that self-insureds and those with high deductibles retain.

“In other words, it’s a low estimate of the impact of the court’s decision in Protz,” Pedrick said Friday.

Oliver Wyman Actuarial Consulting of Melville, New York, backed up the bureau’s numbers in a statement partner Scott Lefkowitz emailed in October.

“Our expectation is that the primary impact of the Protz decision will be to increase the incidence, or frequency, of PTD claims, much as implementation of the law change 20-plus years ago decreased the incidence, or frequency of PTD claims,” Lefkowitz said.  

Pittsburgh claimants’ attorney Larry Chaban said Friday that he questioned the bureau as a member of the state Workers’ Compensation Advisory Council and is “not satisfied with their answers.”

“My biggest concern is they’re trying to stampede the General Assembly into doing something quickly,” Chaban said.


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