02/15/1996 03:05 PM House HES

 HB 60 - IMPAIRMENT RATING GUIDES FOR WORKERS COMP                           
                                                                               
 Number 1750                                                                   
                                                                               
 CO-CHAIR BUNDE asked Representative Bettye Davis, sponsor of HB 60            
 if she had an opening statement.                                              
                                                                               
 REPRESENTATIVE BETTYE DAVIS, Sponsor of HB 60, said since the last            
 hearing on this bill she has run into a few situations and was                
 happy the HESS Committee was hearing the bill again.  She asked               
 Jonathan Sperber, Legislative Administrative Assistant, to join her           
 at the witness table.                                                         
                                                                               
 Number 1819                                                                   
                                                                               
 STEVE CONN, Executive Director, Alaska Public Interest Research               
 Group, said he was providing the committee with the amicus brief              
 that was filed in the Garcia case by the American Medical                     
 Association which addresses the AMA guides and their appropriate              
 use.  He encouraged committee members to take a good look at the              
 brief prior to voting on this bill.  The AMA makes it clear that in           
 Texas and he suspects in Alaska as well, the AMA guides, though               
 worthy in a certain scientific and academic sense, are being used             
 and abused because it was contemplated they would be combined with            
 other factors to determine the extent to which industrial use of              
 the worker's body would (indisc.).  Also, the AMA expressly advised           
 that one-to-one translation of impairment in disability is a use              
 not intended and totally discouraged.  Finally, no direct                     
 relationship or correlation between physical impairment which the             
 guides were designed to measure, had (indisc.) disability economic            
 loss or economic impairment was contemplated by the authors of the            
 guides.  He would rather the AMA do the talking for the AMA guides,           
 so as mentioned previously he would forward a copy of the AMA's               
 brief.  With regards to the futuristic focus on the drafting                  
 language and the adoption of as yet unwritten collateral material,            
 he deferred to Scott McEntire.                                                
                                                                               
 Number 1900                                                                   
                                                                               
 SCOTT McENTIRE testified from Anchorage that he is an injured                 
 worker who has been in the Workers' Compensation system four years            
 now and has had four evaluations performed under these guides with            
 four different results.  He said the guides are terribly                      
 inconsistent in their application.  He believes this particular               
 bill (indisc.) future editions of the guide that aren't even                  
 published yet is a violation of Article I, Section II, of the state           
 Constitution.  The Supreme Court has ruled that an agency cannot              
 adopt future amendments by reference and their reason stated was              
 "One reason for the prohibition against delegations of the future             
 of law making power of the state to private groups is that when               
 amendments are adopted by these groups, the public does not                   
 necessarily receive notice of or have an opportunity to comment on            
 or criticize the amendments as it does when they are adopted by the           
 legislature or promulgated under the Alaska Administrative                    
 Procedures Act."                                                              
                                                                               
 Number 1989                                                                   
                                                                               
 MR. McENTIRE said referred to "including supplementary materials"             
 and wanted to know what those materials were.  He knows the                   
 American Medical Association has published supplements to the 4th             
 edition of the guide, which is over 200 pages long and they also              
 have a videotape series of the proper use of the guides.  He asked            
 if those were included.  He pointed out HB 60 states the board                
 shall adopt a supplementary recognized schedule that can't be used            
 by the guides and he believes, by nature, any list is incomplete,             
 the guides themselves are a list and they're incomplete, adopting             
 another list will also be incomplete which is delineated in the               
 Gilmore decision.  Mr. McEntire asked the committee to consider             
 Justice Compton's dissenting opinion in the Rydwell v. Anchorage            
 School District decision before passing this legislation.                   
                                                                               
 REPRESENTATIVE BRICE explained that current language indicates any            
 AMA guides can be used.  The proposed legislation would specify the           
 most recent guides were to be used and instead of having to go                
 through the Administrative Procedures Act to establish the newest             
 set of guides, the Department of Labor would be able to accomplish            
 that in a much more efficient, inexpensive way.                               
                                                                               
 MR. McENTIRE suggested reading (indisc.) Statutory Construction,              
 Chapter 4, particularly Section 4.05 and 4.11.                                
                                                                               
 REPRESENTATIVE B. DAVIS referenced Mr. McEntire's problem of having           
 been evaluated four times with different documents, and said under            
 this legislation, the most current guide would be used each time              
 which should alleviate that problem.  It was her understanding the            
 AMA supported HB 60.  One of the problems that was identified in              
 the hearing before the Labor & Commerce Committee was that it takes           
 too long for the regulations to be promulgated.  She pointed out              
 the Department of Labor was asked to start the regulation process             
 last April and it still isn't completed.  She does not want to                
 introduce a piece of legislation just for the sake of introducing             
 it, but she understood that it was needed.                                    
                                                                               
 CO-CHAIR TOOHEY expressed concern with the provision that requires            
 the board to begin using the new edition not later than 60 days.              
 She asked if there was a possibility it wouldn't be received within           
 60 days.  If so, wouldn't it be better to change it to 90 days.               
                                                                               
 REPRESENTATIVE B. DAVIS said she would not have a problem with it             
 being changed to 90 days.                                                     
                                                                               
 Number 2170                                                                   
                                                                               
 PAUL GROSSI, Director, Division of Workers' Compensation,                     
 Department of Labor, said it could probably be done within 60 days,           
 but 90 days would make it easier and less pressure for the                    
 department.  He pointed out if the committee doesn't pass this                
 legislation, current law will stand and permanent partial                     
 impairments would be rated according to whatever guide is in effect           
 by regulation.  The problem is the length of time involved in                 
 getting regulations promulgated and that problem will exist every             
 time the AMA guide changes and new regulations have to be passed.             
                                                                               
 CO-CHAIR BUNDE said he thought a question had been raised as to               
 whether the AMA guide was the appropriate tool, which is not                  
 addressed in this legislation.  The AMA guide will remain the tool            
 that is used.  If there are concerns about having a different tool            
 or multiple tools available, that would require separate                      
 legislation.  This legislation makes the use of the current tool              
 more efficient.                                                               
                                                                               
 MR. GROSSI said he believed the case in Texas mentioned earlier was           
 on the constitutionality of using the AMA guide.  It was found                
 constitutional.  However, there were a number of questions raised             
 about whether this really talks about disability, and it is                   
 strictly permanent partial impairment which does not address                  
 disability.  Nothing in this legislation would change that, it                
 would just go back to a less efficient way.                                   
                                                                               
 CO-CHAIR TOOHEY asked if 60 days would raise a problem for the                
 Department of Labor and if 90 days would make it easier.                      
                                                                               
 MR. GROSSI said 90 days would make it easier.                                 
                                                                               
 REPRESENTATIVE DAVIS reiterated that she had no problem changing it           
 to 90 days.                                                                   
                                                                               
 MR. GROSSI said with 90 days none of the doctors, insurance                   
 companies or employers would get caught using the wrong impairment            
 guide.                                                                        
                                                                               
 CO-CHAIR TOOHEY closed public testimony.                                      
                                                                               
 Number 2317                                                                   
                                                                               
 REPRESENTATIVE ROKEBERG made a motion to adopt CS version 9-                  
 LS0293\C, dated 1/25/96, as the working document.  Hearing no                 
 objection, it was so ordered.                                                 
                                                                               
 Number 2329                                                                   
                                                                               
 CO-CHAIR TOOHEY offered a friendly amendment to change 60 days to             
 90 days.  Hearing no objection, the amendment was adopted.                    
                                                                               
 Number 2343                                                                   
                                                                               
 REPRESENTATIVE BRICE made a motion to move CSHB 60(HES) out of                
 committee with individual recommendations and zero fiscal note.               
 Hearing no objection, it was so ordered.