File No. 70086
David Kizer, Esq.
Industrial Medical Council
395 Oyster Point Boulevard, Suite 102
South San Francisco, CA 94080
Re: Proposed Regulations Regarding Qualified Medical Examiners Dear Mr. Kizer:
We represent the California Chiropractic Association ("CCA"). Please accept this letter as the official testimony of the CCA with regards to the portion of the proposed regulations relating to Chiropractic Specialty Designations.
We have reviewed written testimony on this subject of the California Medical Association and the California Orthopedic Association (collectively, the "Medical Profession") and frankly find it preposterous. This is not a subject where Attorney General opinions from 24 years ago are needed in order to ascertain the law. The California Legislature has spoken clearly and definitively by the adoption of California Labor Code Section 139.2. Specifically, Section 139.2(b) states that the Industrial Medical Council ("IMC"):
"shall appoint as qualified medical evaluators physicians, ... who demonstrate that they meet each of the following requirements:
(1) Pass an examination written and administered by the Industrial Medical Council for the purpose of demonstrating competence and evaluating medical issues in the Workers' Compensation system ...
(2) Devote at least one-third of total practice time to providing direct medical treatment, or has served as an agreed medical evaluator on eight or more occasions in the 12 months prior to applying to be a qualified medical evaluator.
(3) Meet one of the following requirements:
(E) If a chiropractor, has either (I) completed a chiropractic postgraduate specialty program of a minimum of 300 hours taught by a school or college recognized by the Council, the Board of Chiropractic Examiners, and the Council on Chiropractic Education; or, (II) been certified in California Workers' Compensation evaluation by an appropriate California Professional Chiropractic Association or accredited California college recognized by the Council."
In the face of this clear statutory mandate requiring the IMC to recognize specialties recognized by California's chiropractic colleges and associations, the Medical Profession's claim that IMC should not recognize such specialty designations is clearly frivolous. The fact that the Medical Profession bases their objections around their concern that chiropractic doctors may attempt to market the fact that they have received the recognition to which they are entitled under Labor Code Section 139.2 discloses the Medical Profession's true anticompetitive motives. How can the Medical Profession complain that it is illegally disadvantaged by a chiropractic doctor accurately and truthfully advertising the status to which he or she is legally entitled?
Similarly, the Medical Profession's attempt to rely on Attorney General's opinion from 1974 and 1976 are specious for five reasons. First, neither of these opinions deal with the issue of whether or not the IMC can recognize chiropractic specialties. Second, Section 139.2 was not passed until 1989. Thus, an Attorney General's opinion written prior to that date does not have any persuasive weight as to the subjects covered by Section 139.2. Third, these Attorney General's opinions are based upon a definition of chiropractic scope of practice that was completely changed with the adoption of Section 302 of Title 16 of the California Code of Regulation in 1988.
The Medical Profession is quite aware of these changes because they unsuccessfully filed suit challenging the definition of chiropractic scope of practice set forth in Section 302. Fourth, these Attorney General's opinions, for reasons that are not relevant here, were badly reasoned and wrongly analyzed when they were drafted 25 years ago. Fifth, and finally, Attorney General's opinions are at best persuasive only in areas of the law that have not yet been resolved. In this case, the IMC is under a clear statutory mandate to recognize chiropractic specialties that are recognized by chiropractic colleges that comprise at least 300 hours of training. Further, the state agency that regulates chiropractic doctors has adopted an official policy statement specifically recognizing "chiropractic orthopedists" as a recognized chiropractic specialty. If the Medical Profession has a quarrel with this designation, their remedy is by way of a court action against the Board of Chiropractic Examiners challenging the BCE's recognition of the "chiropractic orthopedist" specialty designation, not this "back door" approach with the IMC.
Finally, the Medical Profession's citations to Section 15 of the Chiropractic Act and to Section 2054 of the Business and Professions Code are inapposite since all of these sections deal with designations by chiropractic doctors that might mislead the public into believing that a chiropractic doctor was licensed as a medical doctor or held some other professional license, other than a license to be a chiropractic doctor. The Legislature certainly considered the issue of whether or not recognizing chiropractic specialties would have this effect and decided that they would not by the adoption of Section 139.2.
It is silly to suggest that the Legislature intended to authorize the prosecution of persons who use the designations that are specifically authorized by Section 139.2. It is respectfully submitted that the IMC should retain its current chiropractic specialty designations and adopt the additional two specialty designations it is mandated to do so under Section 139.2.
Respectfully submitted,
Michael J. Schroeder,PC
Hart, King & Coldren
.
