When is the opinion of a board-certified (occupational medicine) physician, with years of experience and special training in the utilization of the AMA Guides, and who has performed numerous Impairment Rating Evaluations (IREs) under both the 5th and 6th editions of the AMA Guides nevertheless deemed incompetent as to an injured employee’s MMI status and whole person impairment rating? Answer: When the mix of her medical practice isn’t sufficiently “clinical” so as to satisfy the determinations of a group of Harrisburg, Pennsylvania bureaucrats. At least, that’s my take after reading a recent Commonwealth Court decision [Verizon Pennsylvania Inc. v. Workers’ Comp. Appeal Bd. (Ketterer), 2014 Pa. Commw. LEXIS 162 (Mar. 12, 2014)].
The employee, a service technician, suffered a neck and back strain in 2008, when his work vehicle was rear-ended. Claimant has been receiving total disability benefits since 2008 for that injury. In 2010, the employer filed a request with the Bureau of Workers’ Compensation (Bureau) for designation of a physician to perform an Independent Rating Evaluation. The Bureau chose an experienced physician to perform the IRE. In January, 2011, the physician examined the employee and determined that he had reached MMI and had a whole person impairment rating of 16%. Based on the IRE report, the employer sought to change the employee’s status from total disability to partial disability.
The Workers’ Compensation Appeal Board denied the employer’s modification petition on the ground that the physician who performed the IRE did not meet the requirement of Section 306(a.2) of the Workers’ Compensation Act (the Act) [77 P.S. § 511.2] that physicians performing IREs must be “active in clinical practice for at least twenty hours per week.”
Indeed, at the hearing the physician indicated that ten months prior to the IRE, she had worked 20 hours a week or more treating patients at Capital Health System, but that she left that practice to set up her own, that the practice consisted solely of workers’ compensation independent medical examinations, workers’ compensation IREs, physical examinations for pilots to determine whether they satisfy Federal Aviation Administration certification requirements, commercial driver’s license examinations, utilization reviews and peer reviews. The physician was, however, board certified in occupational medicine and enjoyed additional training in the proper use of the AMA Guides.
Statute Silent on Definition of “Clinical Practice”
On appeal, the Commonwealth court acknowledged that the question before the court: What type of medical work satisfies the requirement of Section 306(a.2)(1) was a matter of first impression, that the Act did not define “clinical practice” and, further, that the issue had not been addressed by the Commonwealth Court or any of the other appellate courts in Pennsylvania.
The court indicated that the Bureau–remember that this is the Bureau that assigned the IRE to the physician in the first place–had addressed the “clinical practice” issue in its impairment rating regulations, that Bureau Regulation 123.103 provided that “[f]or purposes of this subchapter, the phrase ‘active in clinical practice’ means the act of providing preventive care and the evaluation, treatment and management of medical conditions of patients on an ongoing basis” [34 Pa. Code § 123.103(b)]. The Commonwealth Court said that the language, “preventive care and the evaluation, treatment and management of medical conditions of patients,” which was both conjunctive and referenced patients as an essential aspect of the practice, required that the physician’s work involve some connection to the care or treatment of patients in order to constitute a “clinical practice.”
The court then repeated the regulatory mantra, that a “regulation promulgated by the agency charged with administering a statute is entitled to deference if it is a reasonable construction of the statutory language and is consistent with the statute.” The court then concluded:
Because a practice consisting solely of workers’ compensation independent medical examinations, workers’ compensation IREs, physical examinations for certification and qualification requirements, utilization reviews and peer reviews does not satisfy the requirement that the IRE be “by a physician … who is active in clinical practice for at least twenty hours per week,” 77 P.S. § 511.2(1), the physician’s IRE of the employee was invalid and the employer’s Modification Petition was properly denied.
I think the Commonwealth Court’s decision is weak for at least two reasons. First, the court seemed all too eager to pass the buck to the Bureau on the issue of “clinical practice.” Why be judicial when you can defer to an unelected body with little, if any, accountability? Why worry about statutory wording? You’ve got a “reg.” There’s a reg for everything, isn’t there? The reg says it isn’t a “clinical” practice unless you regularly see patients (although, of course, it actually doesn’t say that).
To paraphrase the philosopher, Obi-Wan Kenobi, “You don’t have to decide the issue, this isn’t the issue that you’re looking for. The Court can go on about its business …. Move along.”
Second, even if one chooses to utilize the Bureau’s definition, it isn’t at all clear that the physican’s practice here wasn’t “clinical.” In the words of the regulation, it was certainly “preventive.” By that I mean the physician’s actions of providing required medical services to ascertain the physical fitness of airline pilots and/or commercial drivers is preventative. That’s the entire reason it’s required. We want to prevent air crashes and auto accidents and we’ve determined that the goal is so important that we require regular physical examinations of pilots and drivers.
Here the physician’s practice was every bit as “preventative” as that of an orthopedist, who primarily treats workers and others after they’ve suffered injury. Moreover, the almighty reg speaks about the “evaluation” of medical conditions. Isn’t an IRE a medical evaluation?
It’s interesting that the court so easily deferred to the Bureau’s judgment as to what sort of practice is “clinical” (and conversely, what is not). Could the Commonwealth Court not also have asked the following question: “if the physician’s mix of practice is so darned important in determining whether or not her IRE report should be accepted and followed, why didn’t the Bureau inquire–ahead of time–as to the mix of her practice? Remember, the physician was chosen by the Bureau, not by the employer or the injured employee.
The Commonwealth Court is saying to the Bureau, “we’ll defer to your determination of statutory construction–which ought to be our job–but we won’t defer to your choice of the expert in the first place.
Before I get down from the soap box, may I make a last point: this case illustrates why workers’ compensation costs are skyrocketing. The IRE was concluded in January 2011. More than three years have passed since the expert’s report, during which the employee has apparently been receiving full permanent total benefits, all because the report of the Bureau’s own expert is invisible because the physician’s practice mix didn’t meet a bureaucratic standard.