Workers Compensation • Impairment Rating Evaluation • “Active in Clinical Practice

Verizon Pa. Inc. v. Workers’ Comp. Appeal Bd., PICS Case No. 14-0439 (Pa. Commw. March 12, 2014) Colins, J. (13 pages).

Workers’ compensation board correctly determined that a doctor who treats no patients did not satisfy the requirement that an IRE physician be active in clinical practice. Affirmed.

A Verizon service technician, whose duties included installations and repairs for telephone, television and computer service, was injured when his work vehicle was rear ended. He began receiving total disability benefits in 2008 for his neck and back injuries. In 2009, Verizon filed a petition for termination of compensation, which was denied and on Nov. 17, 2010, and filed a request for designation of a physician to perform an IRE. The bureau designated a doctor to perform the IRE and she examined the technician on Jan. 5, 2011, and determined that he had reached maximum medical improvement and had a whole person impairment rating of 16 percent. On Feb. 10, 2011, Verizon filed a modification petition to change the technician’s status from total to partial disability based on the doctor’s IRE rating. The workers’ compensation judge denied the modification petition on the grounds that the doctor did not meet the requirement that physicians performing IREs must be “active in clinical practice for at least twenty hours per week.”

The board’s approval of the doctor to perform IREs was based on her 2008 application that listed her treatment of patients at Capital Health System as her clinical experience. At the time of the IRE however, she had left Capital Health System and did not treat or manage the care of any patients. She left Capital Health System in February 2010 and her practice since then had consisted solely of workers’ compensation independent medical examinations, workers’ compensation IREs, physical examinations for pilots to satisfy FAA certification requirements, commercial driver license examinations, utilization reviews and peer reviews.

The requirements for a valid IRE specified in §306(a.2)(1) apply equally to IREs requested and performed under §306(a.2)(6). The requirements in §306(a.2)(1) are mandatory and an IRE that does not satisfy those requirements is invalid. The bureau has defined the term “active in clinical practice” used in §306(a.2)(1) in its impairment rating regulations to mean “providing preventive care and the evaluation, treatment and management of medical conditions of patients on an ongoing basis.” This requires that the physician’s work involve some connection to the care or treatment of patients. The definition in the regulation is a reasonable construction of the Act’s language and requiring some connection to patient care and treatment is consistent with the medical definition of the term.

Verizon’s argument that the legislative intent in imposing the “clinical practice” requirement was only to ensure that IRE physicians be up to date in their qualifications and knowledge is not persuasive and is contrary to the rules of statutory construction. The legislature’s choice to include the word “clinical” suggests that the purpose of the requirement is to ensure that IRE physicians have a medical practice in which their judgments have genuine consequences for patient care and treatment and to exclude physicians whose only work is to provide opinions and evaluations for legal determinations.

“Clinical practice” mandates that the physician’s practice relate to patient treatment and care. This does not require the physician to have private patients. The requirement may be met by treatment and management of injuries as a panel physician hired by the patient’s employer or workers’ compensation insurer. Additionally, evaluation or diagnosis of patients for the purposes of recommending or referring for medical treatment by others can also constitute “clinical practice.”

While the doctor’s treatment of patients as a Capital Health System physician qualified her to perform IREs when she applied to the board, that part of her work had ceased ten months before she performed her IRE of the claimant and her deposition testimony clearly showed that she was not currently providing treatment or care to any patients at the time of the IRE. Thus, her IRE was invalid and Verizon’s modification petition was properly denied.