KY Supreme Court: Noted Medical Authority’s AMA Guides Report Inadmissible

In a decision that may have attorneys in other states scurrying back to their respective statutes to check their states’ definitions of “physician,” the Supreme Court of Kentucky held that under the clear wording of KRS 342.0011, which generally defines “physician” as someone “licensed in the Commonwealth of Kentucky,” an ALJ could not consider a medical report prepared by Dr. Christopher Brigham, a well-known authority on the AMA Impairment Guides, since he was not licensed in Kentucky [Toler v. Oldham County Fiscal Court, 2022 Ky. LEXIS 143 (June 16, 2022)]. Dr. Brigham, who did not examine the injured worker, but rather reviewed the medical file, had opined that under the AMA Guides (5th Edition), applicable in Kentucky, it was not appropriate—under the medical facts in the case—for the examining physician to assess an additional 2 percent permanent impairment rating for pain. Relying on Dr. Brigham’s opinion, the ALJ had declined to award that additional 2 percent. The Supreme Court reversed and remanded, saying that consideration of Dr. Brigham’s report was not allowed under the Kentucky statute.

Background

The facts of the case were not in dispute. Officer Toler sustained a work-related injury to his left knee on January 16, 2018. The following day, he was placed on light duty. On April 30, 2018, Dr. Nicholas Kenney surgically repaired Toler’s knee by performing a left knee arthroscopy with a partial medial, lateral meniscectomy. Dr. Kenney released Officer Toler to return to full duty on August 8, 2018.

Dr. Roberts’ IME

On December 5, 2018, Dr. Craig Roberts conducted an independent medical examination (IME) on Toler. Dr. Roberts diagnosed left knee medial lateral meniscus tears that required surgery. Toler reported that he continued to have occasional sharp knee pain in the anterior portion of his knee, and that the pain was generally a three out of ten on a scale of one to ten. Dr. Roberts opined that Officer Toler had reached MMI, and assessed a 4 percent impairment rating for Officer Toler’s surgery and a 2 percent impairment rating for pain, equaling a 6 percent whole person impairment rating.

Dr. Roberts reasoned that the additional 2 percent rating for pain was appropriate based on Table 18-1 of the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment, which states: “If pain-related impairment appears to increase the burden of the individual’s condition slightly, the examiner may increase the percentage found … by up to 3 percent.” Officer Toler submitted Dr. Roberts’ IME as an attachment to his Application for Resolution of a Claim, which he filed on January 7, 2020.

Review of Medical File by Dr. Christopher Brigham

Toler’s employer, Oldham County Fiscal Court (Oldham), contested Dr. Roberts’ 6 percent impairment rating. In relevant part it submitted a report from Dr. Christopher Brigham. Dr. Brigham did not physically examine Officer Toler, but instead reviewed his medical records. Dr. Brigham agreed with Dr. Roberts’ assignment of a 4 percent impairment rating for Officer Toler’s surgery, but believed an additional 2 percent impairment rating for pain was inappropriate.

Brigham: Pain Already Included in Impairment Rating

In essence, Dr. Brigham opined that Officer Toler had normal or expected pain associated with his surgical procedure. According to Dr. Brigham, the Guides’ impairment ratings currently included allowances for the pain that individuals typically experience when they suffer from various injuries or diseases. Dr. Brigham indicated In this case, the subjective reports by Officer Toler were commonly associated with someone who has undergone meniscal surgery. According to Dr. Brigham, therefore, the Guides were clear that providing additional impairment was not appropriate.

Dr. Roberts Sticks to His Opinion

Dr. Roberts subsequently filed a supplemental report to his IME wherein he stood by his additional 2 percent rating for pain notwithstanding Dr. Brigham’s report. Dr. Roberts’ supplement again emphasized the language of Figure 18-1, which allows for an increase of a whole person impairment rating by up to 3 percent “[if] the pain-related impairment appears to increase the burden of the individual’s condition slightly.” Dr. Roberts also noted the following language from Section 18.3 of the Guides, which he faulted Dr. Brigham for overlooking: “Thus, if an examining physician determines that an individual has a pain-related impairment, he or she will have the additional task of deciding whether or not that impairment has already been adequately incorporated into the rating the person has received on the basis of other chapters of the guides.” Dr. Roberts highlighted that, as he physically examined Officer Toler, he was in the best position to render an opinion regarding an additional rating for pain.

Was Dr. Brigham a “Physician” Under Kentucky’s Statute?

Officer Toler filed an objection to the admission of Dr. Brigham’s report as direct evidence. Officer Toler noted that Dr. Brigham “never met, interviewed or examined” him. But his primary argument was that Dr. Brigham is not a “physician” as defined by KRS Chapter 342 [the Workers’ Compensation Statutes], because he was not licensed in the Commonwealth of Kentucky. Consequently, Officer Toler argued, Dr. Brigham’s report was inadmissible.

ALJ: Dr. Brigham was “Physician”

Ultimately, the ALJ determined that Dr. Brigham met the KRS 342.0011 definition of “physician,” finding the intent of the statute was not to limit the ability of otherwise qualified physicians to render opinions that might be used in Workers’ Compensation cases.

The ALJ further found that “the pain described by [Officer Toler] and documented by the evidence of record herein does not rise to the level of that referenced by the AMA Guides in order to support an impairment rating in excess of what is associated with [Officer Toler’s] Meniscectomy.” The ALJ accordingly found Dr. Brigham’s opinion to be more credible than Dr. Roberts’ and did not award Officer Toler an additional 2 percent impairment rating for pain. The Board affirmed in relevant part.

Supreme Court: Dr. Brigham is not a “physician” as defined by KRS 342.0011(32)

Initially the Supreme Court noted that KRS 342.0011.13 declares:

As used in this chapter, unless the context otherwise requires … “Physician” means physicians and surgeons, psychologists, optometrists, dentists, podiatrists, and osteopathic and chiropractic practitioners acting within the scope of their license issued by the Commonwealth [emphasis by the Supreme Court].

The Court continued that the statute’s prefatory phrase “unless context otherwise requires” meant that the provided definition of “physician” must be applied, unless the context in which it is found compels a different definition. The Court stressed that the ALJ found that this context should permit the expansion of the definition of “physician” to include individuals who do not have a Kentucky medical license in order to widen the pool of physicians qualified to provide medical opinions in workers’ compensation cases. The Court acknowledged that the state legislature might decide in the future to widen the pool of potential medical experts, but until such an amendment to the statute, the Court was bound to follow the statutory language: only physicians licensed in Kentucky may provide such evidence.

Summarizing its findings, the Court stated that [b]ased on the foregoing, we hold that Dr. Brigham does not meet the statutory definition of “physician” under KRS 342.0011(32). His report was therefore inadmissible, and the ALJ should not have considered it as evidence.

Holding Does Not Apply to Treating Physicians

The Court added, as a final point of clarification, that its holding does not apply to treating physicians.

The Court vacated the ALJ’s Opinion and Order and remanded the case for further proceedings consistent with its opinion.