Request By:
J. Bradford Block, M.D.
Medical Consultant
Department of Labor
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Martin Glazer, Assistant Attorney General
You have requested an opinion of this office concerning the amendments to KRS 18.140, specifically House Bill 405 in the 1978 session which amends KRS 18.140(1)(i) to wit:
"(1) The classified service to which KRS 18.110 to 18.360 shall apply shall comprise all positions in the state service now existing or hereafter established, except the following:
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"(i) Physicians employed as such [in institutions for treatment of patients with mental illness or tuberculosis] ."
You indicate that the Department of Personnel has interpreted this section to mean that all physicians are excluded from the merit system, whereas, your interpret it to mean only those positions where the person is classified as physician, such as Physician I, II, III, IV and V. Apparently, you are classified Occupational Safety and Health Medical Consultant and not as a physician.
You further state that the duties and responsibilities of medical doctors employed as physicians differ significantly from other classes of medical doctors, that a physician employed as such has always been held to mean a physician providing examinations, diagnoses and treatment of patients, and that a number of medical doctors employed in state govenment do not do these things.
The statute aforesaid, previously quoted, limited exclusions from the merit system only those physicians employed in institutions where treatment of patients of mental illness or tuberculosis, that is, doctors in mental hospitals or doctors in tuberculosis hospitals. It is obvious that the legislature enlarged this exemption. However, we do not agree with your interpretation that the General Assembly intended to limit the exemption only to those persons classified with the title of Physician I, II, III, IV and V. The act which licensed medical doctors in Kentucky defines in KRS 311.550(10) to wit:
"'Physician' means a doctor of medicine or a doctor of osteopathy."
It is our view that if the job position requires that the person, however he is titled, be a doctor of medicine, then he is a physician. On the other hand, if a physician desires to accept a position which does not require him to be a doctor of medicine - to use an extreme example, a clerk typist - then he would not be excluded from the merit system simply because he happens to be a physician. In the class title Occupational Safety and Health Medical Consultant (Code 2480), we notice that the minimum requirements state that the person occupying the position must be a doctor of medicine, licensed by the Commonwealth of Kentucky, with two years of specialized training in occupational medicine; three years of experience in occupational medicine. In that regard, you are a physician employed as such regardless of the title of your position and pursuant to the amendment to KRS 18.140(1)(i), you are excluded from merit system coverage.