Modification petition is based on results of IRE was properly dismissed because IRE physician failed to satisfy §306 (a.2) of Act by not being active in clinical practice for at least 20 hours per week.
The claimant was receiving workers’ compensation benefits for injuries he sustained in a work-related motor vehicle accident. The employer filed a request with the Bureau to designate a physician to perform an IRE. The physician selected performed the IRE and concluded that the claimant had an impairment rating of 16 percent. The employer then filed a modification petition based on the results of the IRE.
The IRE physician was Board Certified in occupational medicine and received training on the AMA Guides, 6th Edition. In addition, the physician was approved by the Bureau as a certified IRE physician. However, at the time of the IRE, the physician did not treat or manage the care of any patients. Her practice consisted solely of workers’ compensation IMEs, IREs, physical examinations for pilots to determine certification requirements, commercial driver’s license examinations, utilization reviews and peer reviews. In fact, at the IRE physician’s deposition, she said that her practice at the time the IRE was performed was mostly administrative.
The judge denied the modification petition on the grounds that the IRE physician did not meet the requirement of §306 (a.2) (1) of the Act, which says that physicians performing IMEs must be active in clinical practice at least 20 hours per week. In deciding this issue, the court turned to the Bureau Regulations. In the court’s view, the regulations require that a physician’s work involve some connection to the care or treatment of patients in order to constitute a “clinical practice.” The court rejected the employer’s argument that the legislative intent of the “clinical practice” requirement was only to ensure that IRE physicians were up-to-date in their qualifications and medical knowledge. The employer further argued that the clinical practice requirement would exclude competent occupational medicine physicians from performing IREs, who generally do not have private patients. The court rejected this position as well. According to the court, the “clinical practice” requirement was broad and may be satisfied by treatment or management of injuries as a panel physician hired by the employer or workers’ compensation insurer.
Case Law Alerts, 3rd Quarter, July 2014