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Day v. Fairbanks Coal Co.4/21/2005
-rays of the same individual and assuring that the x-ray and report that the employer submits are produced within the period set forth in KRS 342.316(3)(b)4.d.
Additional considerations are present at the second level of the consensus process. As is apparent from KRS 342.794(1) and KRS 342.316(3)(b)4.e., the purpose of the second level is to provide evidence from additional 13-readers who are hired by the Department and, therefore, are neutral. The masking requirement furthers the purpose of KRS 342.794(1) and KRS 342.316(3)(b)4.e. by preventing bias against certain physicians and medical facilities from being a factor in consensus panel interpretations. We note, however, that nothing in Chapter 342 or the regulations prohibits 13-readers who interpret x-rays for the Department in a given claim from also interpreting x-rays for plaintiffs or defendants. It is for that reason that 803 KAR 25:009, ยง 4(3)(b) requires the Department to be certain that no member of a consensus panel provided the initial reading for the plaintiff or defendant.
Neither KRS 342.316(3)(b)1. nor a regulation provides for the date of an x-ray to be masked. Nonetheless, it would be obvious to members of a consensus panel that the x-ray bearing the earlier date was submitted by the plaintiff and the other by the defendant, giving rise to the potential for bias. Hence, to apply KRS 342.316(3)(b)1. literally and require consensus panel reports to identify the x-ray being interpreted by its date (rather than by a letter of the alphabet that represents the date) would undermine the very purpose of obtaining the reports.
A consensus panel's charge under KRS 342.316(3)(b)4.e. is to review the x-rays the parties have submitted and to interpret the highest quality x-ray, a task for which the date of an x-ray or the identity of the party that submitted it is immaterial. The sole function of the date at that stage of the process is to distinguish one x-ray of the worker from another for the purpose of stating which was interpreted. Masking the date of each x-ray and substituting a letter of the alphabet as the Department has done not only preserves the anonymity of the party that submitted it but enables the x-rays being reviewed to be distinguished. Hence, it furthers the purposes of KRS 342.316(3)(b)4.e. and KRS 342.794(1) as well as the purposes of KRS 342.316(3)(b)1. We conclude, therefore, that reports by the three B-readers hired by the Department may identify the x-ray being interpreted with a letter of the alphabet assigned by the Department rather than the date on which it was taken.
The decision of the Court of Appeals is reversed, and the decision of the ALJ is reinstated.
All concur.
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