Oklahoma nonphysicians can determine workers' comp cases

A rule allowing only MDs and DOs to serve as independent medical examiners in workers' compensation cases has been declared unconstitutional by the Supreme Court of Oklahoma.

The provision, enacted as part of an August 2011 workers' compensation law, prevented chiropractors, dentists, optometrists and others from acting as qualified examiners in such cases. It also prohibited them from testifying as experts in workers' comp cases.

The court's opinion diminishes the work physicians do and is a blow to patient safety, said Wes Glinsmann, director of state legislative affairs and political affairs for the Oklahoma State Medical Assn. The association was not involved in the lawsuit but supported the rule.

"Chiropractors simply do not have the medical training and expertise that an MD or a DO does. That was our main concern, making sure patients receive an accurate diagnosis and the best treatment," he said. The court ruling "gets rid of what we thought was a needed reform."

Chiropractors had been allowed to serve as independent medical examiners until Aug. 26, 2011, when the workers' compensation law took effect. The Oklahoma State Chiropractic Independent Physicians Assn. and two chiropractors sued the state over the rule. They claimed that the provision violated the separation-of-powers clause in the state constitution and that the state had no valid reason to distinguish between MDs and DOs "and other physicians."

They said the provision violates the separation-of-powers clause because it gives legislators power over judges in workers' compensation cases. A court should be free to decide whether a claim exists without the state limiting who is qualified to testify, chiropractors said.

Chiropractors' primary area of expertise is the musculoskeletal system, of which a significant portion of workers' comp claims are related, the chiropractors said. The state argued to retain the provision.

In its Dec. 20, 2011, opinion, the state high court said that by excluding chiropractors, podiatrists, dentists and optometrists, the Legislature created an unsupported "suspect special class."

"We also find that there is neither a distinctive characteristic upon which this different treatment is reasonably founded nor one which furnishes a practical and real basis for discrimination between the groups within the classes," judges said. "We hold that the definition of 'qualified independent medical examiner' to the extent it is limited to only a licensed medical doctor or doctor of osteopathy ... are special laws in violation of the Oklahoma Constitution."

At this article's deadline, the Oklahoma attorney general's office, which represented the state, had not returned messages seeking comment. A spokesman for Gov. Mary Fallin's office said the workers' comp reform law will benefit Oklahoma residents.

"While provisions of the landmark workers' compensation reform bill have been struck down, the majority of the law remains in effect and has already resulted in lower workers' comp rates in Oklahoma," said spokesman Alex Weintz.

Physicians say patients at risk

The ruling was an appropriate response to unnecessary legislation, said John C. McMurry, the plaintiffs' attorney.

Chiropractors are qualified to treat injuries related to the skeletal system, he said. "They were perfectly confident in that area," he said. "There was no reason to disqualify them."

The rule's intent was to ensure that patients are accurately diagnosed and treated properly, Glinsmann said. The OSMA consulted with legislators to help change language in the law to exclude chiropractors as independent medical examiners.

"It's a patient safety issue," he said. "We wanted to make sure things are being done correctly on the front line to avoid a situation down the line." It was frustrating that chiropractors did not weigh in as the legislation was being developed but sought legal action as soon as it was enacted, he said.

The Oklahoma State Chiropractic Independent Physicians Assn. said that was because the law's language was changed at the last minute and enacted without chiropractors' knowledge.

"The importance of this particular issue has to do with the patients themselves," said Brad Hayes, a chiropractor and OSCIPA's vice president. "Orthopedic surgeons do not always have the answer to back pain. It's important we allow [patients] to make decisions for themselves on who should be allowed in their health care."

The OSMA said it will continue to evaluate and monitor the issue.