State News : Pennsylvania

“PRACTICE, WHY PRACTICE?”

By Kevin L. Connors, Esquire

No, we are not taking about the iconic Allen Iverson whose penchant for missing team practices while the leading scorer for the Philadelphia 76ers throughout his turbulent career became well-documented by his own tattooed admission before a viral TV reporter audience became the stuff of ignorant legend.

No, this time we are talking about the invalidation of an IRE physician who had originally been certified by the Pennsylvania Bureau of Workers’ Compensation as a certified IRE physician, by virtue of the physician having initially met the threshold credentialing requirement of being “active in clinical practice” for at least twenty hours per week when originally approved to conduct IREs, the seemingly mystical assessment of determining whole person impairment in reliance upon the byzantine AMA Guides to Impairment.

The case being discussed is the recent Commonwealth Court Opinion in Verizon v. WCAB (Ketterer), authored by Senior Judge Colins on March 12, 2014.  The issue examined by the Commonwealth Court was whether the IRE doctor’s (Dr. Antonelli) discontinuance of an “active clinical practice” negated/eviscerated her authority to perform an Impairment Rating Evaluation on the Claimant.

The Claimant had been a service technician for Verizon, performing installations and repairs for telephone, television, and computers.  He injured his neck and back while working for Verizon on August 27, 2008, when his service vehicle was rear-ended.

The claim was accepted, as some claims are, and the Claimant began receiving temporary total disability benefits, although the Employer filed a Termination Petition in 2009, seeking to terminate its liability for compensation benefits under the Notice of Compensation Payable.

Verizon’s Termination Petition was, however, denied by the Workers’ Compensation Judge, with there being no discussion in the Decision regarding the evidence presented in support of and in opposition to the Termination Petition.

Several months after the Termination Petition was denied, the Employer requested that the Bureau designate a physician to perform an IRE.

This is a two-step process, the first being that the IRE Physician Designation can only be requested after the Claimant has received 104 weeks of temporary total disability benefits, although the formal request can be made 60 days in advance of the Claimant receiving two years of compensation benefits.

The second step is that the Bureau then randomly assigns the IRE request, using a list of physicians that the Bureau has vetted through a credentialing and qualification process, seemingly untethered to specific medical specialties, requiring the following qualifications:

·         A license to practice medicine in Pennsylvania;

·         Physician training on the AMA’s Guides to the Evaluation of Permanent Impairment;

·         Board-certification in a medical specialty;

·         The hands-on requirement that IRE physicians must maintain a medical practice involving twenty hours per week of clinical medicine; and,

·         Formal approval of IRE physician status by the Bureau.

In Verizon, the Bureau had randomly assigned Verizon’s IRE Physician Designation request to Dr. Elena Antonelli, whom the Bureau had approved as an IRE physician in 2008.  In 2008, Dr. Antonelli maintained an active clinical patient practice with Capital Health.

Fast forward to Dr. Antonelli’s 2010 IRE of the Claimant, resulting in a 16% impairment rating, an impairment rating that would effectively convert the Claimant’s entitlement to temporary total disability benefits to only being entitled to receive temporary partial disability benefits, the relevance of which is that the Claimant would then be limited to receiving another 500 weeks of temporary partial disability benefits, the statutory limit under Section 306(b) of the Pennsylvania WCA, as opposed to there being no limit whatsoever for temporary total disability benefits.

Following the IRE, Verizon petitioned to modify the Claimant’s compensation benefits from temporary total to temporary partial disability benefits, the statutory mechanism for converting the Claimant’s compensation benefits status when the IRE Physician Designation request has not been made either 60 days before or 60 days after the Claimant receives 104 weeks of temporary total disability benefits, as an IRE request within that window of claim time entitles the Employer to an automatic conversion of the Claimant’s compensation benefits from temporary total to temporary partial disability benefits, while an IRE Physician Designation request made 60 days after the Claimant has received 104 weeks of temporary total disability benefits requires the Employer to Petition to Modify/Convert the compensation benefits from temporary total to temporary partial.

Presumably, that is the procedural background for how the IRE issue was litigated.

In defense and support of Verizon’s Modification Petition, Dr. Antonelli testified that her practice was essentially limited to conducting IMEs, IREs, and physical examinations for Pilots and Truck Drivers, as she was not otherwise engaged in an active clinical practice, testifying “I don’t have that much of a clinical practice any longer.”

Of course, this fact should have been disclosed by Dr. Antonelli before she was paid handsomely for her deposition testimony.

In fact, she testified that her practice was largely “administrative”, bizarrely not a credentialing requirement imposed by the Bureau for conducting IREs.

In reliance upon Dr. Antonelli’s admission of not having an active clinical practice, the WCJ denied Verizon’s Modification Petition, with that denial being affirmed by the Commonwealth Court in the course of which it has now been held, in a case of first impression, there being no statutory definition of “clinical practice” in the WCA, although the Bureau has addressed that definition in the Bureau Regulations that deal with Impairment Rating Evaluations, defining “active in clinical practice” as “the act of providing preventative care and evaluation, and treatment and management of medical conditions of patients on an ongoing basis.”34 Pa. Code § 123.103(b), with the Commonwealth Court holding that the Bureau’s regulatory definition requires that an active clinical practice involve both “preventative care and evaluation, and treatment and management” of medical conditions of patients, being a conjunctive grammatical structure, the conjugation of which requires an “and”, as opposed to an “or”.

“Practice, why practice”, means, yes, that an IRE physician must practice clinical medicine at least 20 hours per week, in the course of which the physician must not only evaluate patients, but must also manage their care and treatment.

In Verizon’s defense, Verizon argued that the legislative intent behind the requirements should be interpreted to mean that IRE physicians insure that their qualifications and medical knowledge are current and updated, with the Commonwealth Court interpreting that legislative intent to require that “physicians have a medical practice in which their judgments have genuine consequences for patient care and treatment”, to the exclusion of physicians whose work is primarily opinion-driven for legal determinations.

Holding that a physician whose practice consists solely of conducting independent medical examination of workers’ compensation claims, performing IREs for workers’ compensation claims, and physical examinations for certification and qualification requirements, does not satisfy the statutory requirements imposed under the Act for physicians to perform IREs, the Commonwealth Court affirmed the underlying Decisions of the WCJ and the Workers’ Compensation Appeal Board, denying the Employer’s Modification Petition.

Being Practical

This being a case of first impression, this Decision will impose another level of scrutiny on Employers and Insurers seeking to modify compensation benefits through the utilization of an IRE, requiring yet another threshold to be crossed, before the liability-capping actuality of an IRE can be realized.

So the Verizon ruling makes it clear that no one can assume that a physician designated by a Bureau to perform an IRE currently meets the Bureau’s regulatory requirements, in terms of maintaining an “active clinical practice”, such that any Employer/Insurer seeking to modify a Claimant’s compensation benefits in reliance upon an IRE, must be sure that the IRE physician is engaged in an “active clinical practice”, at the time that the IRE physician performs the IRE, so that the IRE is not later being challenged for having failed to meet all regulatory requirements, including the physician’s qualifications.

This ruling could potentially result in there being Claimant-focused discovery directed at determining whether an IRE physician meets the regulatory requirements of maintaining an “active clinical practice” and that could well turn into a paper chase of hours worked and patients consulted, requiring validation as a threshold to efficacy.

Despite Allen Iverson’s query to the contrary, practice is an essential test of professional skill and judgment, as well as being the regulatory requirement for conducting IREs.

ConnorsLaw LLP

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