Is there a Doctor in the House?

Essentially, in this case, Toler filed for workers’ compensation benefits and litigation ensued. The employer engaged the services of a physician, to review the case and provide expert testimony. This physician did not examine Toler, and following a records review disagreed in part with the permanent impairment rating assigned by another physician. The court opinion omits that the physician was a primary author of the book to which the testimony referred, the AMA Guides to Permanent Impairment, Sixth Edition. That physician’s conclusions were not favorable to Toler’s claims and were objected to.

The Claimant argued that this physician “is not a ‘physician’ as defined by KRS Chapter 342.” This was based upon the fact the doctor “is not licensed in the Commonwealth of Kentucky,” and the physician’s “report was (thus)inadmissible.” This argument was underscored by the requirement that the Kentucky “Rules of Evidence . . . shall apply in all proceedings before the ALJ except as varied by specific statute and this administrative regulation.” And, the only such statutory exception applicable to this situation is one that allows “medical reports by physicians.” 803 KAR 25:010, §11 [and] KRS 342.033.

Thus, the definition of the word “physician” becomes most apropos. The Court noted that KRS 342.0011 § (32), defines “Physician” as “physicians and surgeons, psychologists, optometrists, dentists, podiatrists, and osteopathic and chiropractic practitioners acting within the scope of their license issued by the Commonwealth.” The Court noted that the individual that reviewed the records and rendered a report is “licensed to practice medicine in Hawaii, Maine, and California,” but not Kentucky.

The ALJ that heard the case admitted the report. The ALJ concluded that the context of the statute suggested that such a report would be admissible. The judge concluded that “the intent of this particular provision is not to limit the ability of otherwise qualified physicians to render opinions that may be used in Workers’ Compensation jurisprudence.” And, in addition, the doctor here “possesses a Kentucky Physician Index Number on file with the Department of Workers’ Claims.”

The ALJ relied upon this physician’s conclusions and opinion and therefore denied some measure of benefits. On plenary appeal, the “Board unanimously disagreed” with Toler in his appeal and “affirmed the ALJ.” Note that in Kentucky the first level of review is by an administrative Board. This affirmance was in large part based upon the “wide discretion afforded to Administrative Law Judges in the workers’ compensation arena by both statutory and case law.” The Court then reviewed the Board decision. It disagreed with the Board, and concluded instead that the statute was clear and the intent of the legislature was plain in the words it chose.

The Court was not wholly dismissive of the “Physician Index Number” that the physician was issued. However, it noted that the issuance of that number was not “dispositive.” It explained that process requires that a physician “fil(e) . . . the physician’s qualifications.” However, “it does not, on its face, provide for validation of those qualifications.” Thus, the issuance of such number for identification does not equate to licensure to practice medicine in Kentucky. The Court concluded that the doctor in this instance “does not meet the statutory definition of ‘physician.'” and the report was inadmissible. Imagine that bystander saw again, but instead “is there a Kentucky licensed doctor in the house?” If one is injured and needing help, would such an inquiry ever arise?

And thus, similarly to the fish, ne insect, drafting in California, in Kentucky a physician might be a physician, and yet not be a physician unless the doctor is licensed by that state.

Notably, the outcome is not dissimilar to the effect rendered by the Florida First District in City of Riviera Beach v. Napier, 791 So. 2d 1160 (Fla. 1st DCA 2001). The Court there interpreted section 440.13(5)(e) Florida Statutes (1997), which limited the population of who can opine in Florida workers’ compensation cases.

“No medical opinion other than the opinion of a medical advisor appointed by the judge of compensation claims or the department, an independent medical examiner, or an authorized treating provider is admissible in proceedings before the judges of compensation claims.”

Thus, under that statute, only the opinions of authorized physicians, independent medical examiners, and expert medical advisors were admissible. Notice Florida constricts the population of physicians who may testify, but does so through a limitation a bit different than the definition path chosen by Kentucky. The Napier Court reasoned that since a provider in that case was paid roughly double the permissible rate for an IME, that provider was thus not an IME and his opinions were inadmissible. There was a fair bit of dissention and discussion of that back in the day. However, in the end, the workers’ compensation community found statutory restriction on testimony in a similar fashion to that recently concluded in Kentucky.

That definitional argument fell out of vogue in Florida as reimbursement limits changed. In time, the Court returned very recently to the topic and characterized the Napier decision as resting upon “the not-too-remarkable proposition that JCCs possess ‘jurisdiction to determine the admissibility of evidence.’” Palm Beach Cnty. Sch. Dist. v. Smith, 337 So. 3d 383 (Fla. 1st DCA 2022), reh’g denied (Mar. 28, 2022). In short, the “Napier objection” is rarely raised regarding payment disqualifying the provider.

While Toler may seem a bit pedestrian, it is yet another apt reminder that statutory definition will control outcomes. Not as newsworthy as fish being bees or bees being fish, but noteworthy. Legislatures are empowered to provide context and definition and they often do.


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