(Nadia Borowski Scott)

The Commonwealth Court has ruled in a case of first impression that doctors who perform impairment rating evaluations under the state Workers’ Compensation Act must have a practice in which they treat or manage the care of patients for at least 20 hours a week.

A three-judge panel in Verizon Pennsylvania v. Workers’ Compensation Appeal Board (Ketterer) unanimously affirmed a Workers’ Compensation Appeal Board decision denying plaintiff Verizon Pennsylvania Inc.’s modification petition seeking to change defendant Arthur Ketterer Jr.’s status from total disability to partial disability.

Writing for the panel in Verizon, Senior Judge James Gardner Colins said Dr. Elena Antonelli, who performed the IRE of Ketterer, was not authorized to do so because she did not meet the statutory requirement of being “‘active in clinical practice for at least 20 hours per week.’”

While the act itself does not define “‘active in clinical practice,’” Colins said, the state Workers’ Compensation Bureau has defined the term in its impairment regulations as “‘the act of providing preventive care and the evaluation, treatment and management of medical conditions of patients on an ongoing basis.’”

“This language, ‘preventive care and the evaluation, treatment and management of medical conditions of patients,’ which is both conjunctive and references patients as an essential aspect of the practice, requires that the physician’s work involve some connection to the care or treatment of patients in order to constitute a ‘clinical practice,’” Colins wrote for the court.

He was joined by Judges Renee Cohn Jubelirer and Patricia A. McCullough.

Although Antonelli is licensed to practice medicine in Pennsylvania, is board-certified in occupational medicine and is a bureau-approved, certified IRE physician, she stopped regularly treating patients 10 months before examining Antonelli, when she left her position with Capital Health System, according to Colins.

Since then, Colins said, Antonelli’s practice has consisted solely of workers’ compensation independent medical examinations, workers’ compensation IREs, physical examinations of pilots to determine whether they can be certified by the Federal Aviation Administration, commercial driver’s license examinations, utilization reviews and peer reviews.

Colins said Antonelli’s practice does not satisfy the “clinical practice” requirement under the act, thus rendering Verizon’s modification petition based on her examination invalid.

Verizon argued that the General Assembly merely intended “clinical practice” to mean IRE physicians are required to stay current on their qualifications and medical knowledge.

But Colins said there is no evidence in the legislative history to support that contention.

Colins also said that argument ignored the fundamental principle of statutory construction requiring courts to give each word of a statutory provision meaning.

“If the General Assembly’s sole intent were to make sure that IRE physicians were up to date in their knowledge and not retired, a requirement that they be ‘active in practice,’ in addition to licensure, board certification and use of the current AMA guides, would have sufficed, and the requirement of ‘clinical practice’ would be superfluous,” Colins said. “The legislature’s choice to include the additional term ‘clinical,’ which connotes patient treatment, suggests that the purpose of Section 306(a.2)(1)’s ‘clinical practice’ 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.”

Verizon also argued that interpreting the act’s “clinical practice” mandate as requiring patient care and treatment would disqualify many competent physicians from performing IREs, because many of them do not have private patients, but Colins said nothing in the bureau’s regulation or his opinion requires IRE physicians to have private patients, only that their practices relate to patient treatment and care.

“This broad requirement may be satisfied by treatment or management of injuries as a panel physician hired by the patient’s employer or workers’ compensation insurer,” Colins said. “Evaluation or diagnosis of patients for purposes of recommending or referring for medical treatment by other physicians can likewise constitute clinical practice because it is a part of the treatment and care of patients. There is no reason to believe that requiring IRE physicians to practice medicine related to patient care and treatment, in addition to rendering evaluations and opinions for legal proceedings, is unduly restrictive or contrary to the General Assembly’s purpose in requiring that IRE physicians be ‘active in clinical practice.’”

Colins also rejected Verizon’s contention that even if the act does require IRE physicians to regularly treat patients, Antonelli established, through her testimony and the fact that she examines pilots for FAA certification, that she met that requirement.

“At no point in her testimony did Dr. Antonelli assert that she ever referred any of the pilots for treatment of conditions that she diagnosed in her examinations,” Colins said. “Moreover, there was no evidence that the pilot examinations were a substantial enough amount of her practice to support a finding of a 20-hour-per-week ‘clinical practice.’ Dr. Antonelli not only did not quantify this part of her work, but characterized those examinations as a small part of her work and testified that most of her work consisted of utilization reviews and peer reviews.”

Zachary M. Rubinich of Weber Gallagher Simpson Stapleton Fires & Newby in Philadelphia represented Verizon.

A spokeswoman for Weber Gallagher said it was firm policy not to comment on pending litigation.

Counsel for Ketterer, Kenneth N. Brodsky of Bala Cynwyd, Pa., said he thought the court made the correct statutory interpretation and called the ruling “a good result for claimants.”

“I think it’s an issue that needed clarification,” Brodsky said.

Zack Needles can be contacted at 215-557-2493 or zneedles@alm.com. Follow him on Twitter @ZNeedlesTLI.

(Copies of the 13-page opinion in Verizon Pennsylvania v. Workers’ Compensation Appeal Board (Ketterer), PICS No. 14-0488 are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •