Opinion from Out-of-State Disability Rating Experts Inadmissible in Kentucky

Dr. Christopher Brigham website is not making an overstatement when it describes him as “one of the nation’s leading authorities on impairment and disability evaluation and management.”

Brigham is the senior contributing editor for the sixth edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment. He also played important roles in the drafting of the third, fourth and fifth editions. As a consultant, he lectures to audiences around the world on the appropriate use of the the AMA Guides. He also frequently serves as an expert witness for insurers.

But Brigham’s expertise no longer carries any weight in Kentucky. The state Supreme Court on June 16 ruled that his opinions were irrelevant to Kentucky workers’ compensation claims because a state statute requires medical experts to be licensed in Kentucky.

Brigham says he “respectfully disagrees” with the ruling. “It was more of a ploy to exclude evidence that someone did not find beneficial,” he said.

The Kentucky Supreme Court declared Brigham and other out-of-state medical experts persona non grata for the state workers’ compensation system in a case brought by Oldham County police officer Tracy Scott Toler, who injured his knee when he ran into another officer during SWAT training.

An independent medical examiner assessed a 4% impairment rating but added 2% because Toler continued to experience pain in his knee.

Oldham County hired Bingham to offer his own opinion. Bingham said Toler’s subjective complaints about pain did not merit a bump in Toler’s disability rating because the rating already accounts for the discomfort. The 5th edition of the Guides allows an increase of up to 3% in a disability rating for pain, but only if it causes a documented interference with daily activities or a change of gait, he testified.

Toler’s attorney, Bruce Garrett Anderson of Louisville, said the 2% difference had a minimal impact on the size of Toler’s permanent disability award, but he wanted to make a point. Anderson said he has been arguing for a long time that physicians who testify if Kentucky workers’ compensation proceedings must be licensed in the state, but the administrative law officers who hear cases have always disagreed.

Anderson said insurers often hire Bingham to argue for lower permanent disability awards.

“They trot him out all the time,” he said. “I’ve seen him enough and his opinions are arrogant.”

After an administrative law judge, the Workers’ Compensation Board and a panel of the Kentucky Court of Appeals decided that Brigham’s report could be admitted into evidence, Anderson took Toler’s case to the state Supreme Court. He pointed out that Kentucky Revised Statutes 342.0011(32) defines “physicians” as one of the specified practitioners acting within the scope of his or her license issued by the Commonwealth “unless the context otherwise requires.”

The Workers’ Compensation Board noted that the Department of Worker Claims had assigned a physician index number to Brigham, providing significant “context” that his opinion should be admitted. The Court of Appeals panel agreed.

The Supreme Court, however, said it must assume that the state legislature meant what it said when it drafted the statute. The unanimous opinion says Kentucky statutes allow injured workers to choose a treating physician licensed by another state in some circumstances, which is one instance where “context” allows the statutory definition of physician to be overlooked.

But the high court said no statute provides any reason to believe that the statutory definition of physician can be ignored when considering medical reports.

“The legislature may decide in the future to widen the pool of potential medical experts,” the court said. “However, the statutory language is limited so only physicians licensed in Kentucky may provide such evidence.”

Brigham said he is licensed in California, Hawaii and Maine, but not in Kentucky. But he said he based his opinion on his knowledge of the AMA Guides; the states that issued his medical licenses have no bearing on the case.

Nonetheless, Anderson said the Supreme Court’s opinion will eliminate the admission of all medical reports written by physicians who are not licensed in Kentucky. He said that will be especially helpful for utilization review: Anderson said almost all of the UR decisions in the state’s system are now done by doctors outside of Kentucky.

Attorney Thomas A. Robinson, co-author of Larson’s Workers’ Compensation Law, said in a blog post that the Kentucky Supreme Court decision “may have attorneys in other states scurrying back to their respective statutes to check their states’ definitions of ‘physician.'”

Robinson said in an email that he cannot yet identify any states that have similar statutes.

“Determining which, if any, other states might have language similar to that in Kentucky is a research issue that I have not yet undertaken,” he said. “From my experience, there is likely to be similar language in at least a few other state acts, but that list of jurisdictions is not yet at hand.”

Many state workers’ compensation laws have a section near the beginning that lays out general provisions, including definitions of terms. In Kentucky, the workers’ compensation laws are organized under Chapter 34. Section 11 of that chapter contains a list of definitions of terms. Paragraph 32 of that section states:

“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.”

But the statutes for states adjacent to Kentucky are surprisingly imprecise.

Workers’ compensation statutes for Arkansas, Missouri, Tennessee, Ohio, Illinois and Indiana contain no definition of physician in the general provisions section. North Carolina’s workers’ compensation law lists “physician” as an example of several types of “health care providers,” but makes no mention of where they must be located or even that they must be licensed.