Every day I do legal research on at least one of the my cases. Staying current on the law, burdens of proof, abuse of discretion standards, and learning which experts the appellate courts reject are important legal tasks. During a recent afternoon research session I discovered an amazing case that ratifies a consistent legal objection I make in every case.
The case is M.H. v. BPOA, State Board of Social Workers, Marriage and Family Therapists and Professional Counselors, 2011 WL 10843395 (Pa. Commw. Ct. Nov. 30, 2011). In this case, M.H., who suffers from a major depressive disorder, received a DUI charge and entered ARD. This is a typical diagnosis and criminal factual occurrence. After notifying the Board, M.H. received a LETTER OF CONCERN and subsequently a notice to appeal for a Mental and Physical Evaluation with Dr. Pogos Voskanian.
Voskanian examined M.H. and opined M.H. was fit for duty and can practice her profession safely ONLY as long as she continues treatment and monitoring by a psychiatrist and is treated for her “self-medicating” with alcohol. M.H. appealed. M.H. argued that: (1) the Board abused its discretion by imposing onerous conditions of probation that do not fit M.H.’s circumstances, which do not warrant probation; (2) the Board failed to provide a rationale or additional findings of fact to justify the conditions it placed on M.H.’s probation, in violation of this Court’s Order; and (3) the conditions of probation imposed by the Board are arbitrary and capricious because the Board had the option of simply directing M.H. to submit to the care of a Board-designated physician. The court agreeD, ruling the Board abused its discretion in setting forth these specific PHMP terms of M.H.’s probation.
The language the court uses is great. “Under the unique circumstances of this case, and based on the rationale the Board provided in response to this Court’s Order, we must hold that the Board, in imposing probationary conditions that are so far removed from the circumstances of M.H.’s violation2 of the Act, acted with a manifest and flagrant abuse of discretion. The language of the Court’s foot note in this sentence is SPECTACULAR. Because the Court previously ruled M.H. violated Section 11(a)(8) of the Act by being unfit to practice by reason of mental illness, the court in this second appeal could not revisit this determination. However, the footnote states “on further reflection and for the reasons discussed below, we very seriously question whether this holding in M.H. I was correct.”
This case language and the footnote is amazing. The Court rules that Board orders requiring enrollment in a one size fits all boilerplate drug and alcohol program is not warranted in mental health care cases. Voskanian’s reports are medically not correct. The PHMP does not apply to individuals who do not suffer from a drug or alcohol addiction or disease. Licensees suffering from a mental health medical condition required medical care, not drug and alcohol treatment. Licensees that are taking proper therapeutic doses of appropriate medication are not alcoholics or drug addicts. Do not voluntarily enroll in the PHMP, go to a Letter of Concern Evaluation, or give the PHMP access to your mental health records without counsel.
Voskanian is a federal workers compensation insurance defense disability expert. Board prosecutors favor his expert reports. However, the M.H. case reveals the Commonwealth Court does not except his net opinion.
Please call me before you go see Voskanian or any other board expert for a VRP consensual evaluation, a mental and physical evaluation, or at a hearing. The Boards are not following the law. The boards are trying to scare every licensee into the PHMP that doesn’t fit their medical health care needs.