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.