February 04, 2015 BY Christopher Bennett
Who's Your Doctor? Tips For Keeping Control Of Medical Benefits With The Posted Panel
Getting and maintaining control of who the medical provider is on a claim can significantly affect the amount of medical costs and indemnity payments paid on a claim. With a reputable physician at the helm of an injured worker’s medical treatment, the employer is in a much better position to provide that worker suitable medical treatment and get the employee back to work as soon as possible. Unfortunately, there are some physicians that, if appointed as ATP, may significantly increase the cost and length of medical treatment and extend a workers’ period of disability or light duty restrictions considerably. The purpose of this article is to offer some practical tips regarding the establishment and use of the posted panel as well as offer insight regarding how the State Board of Workers’ Compensation deals with common issues involving posted panels.
First, the “nuts and bolts” of O.C.G.A. §34-9-201 and Board Rule 201: Pursuant to O.C.G.A. §34-9-201 and Board Rule 201, and employer is obligated to furnish medical treatment to an injured worker. As part of this requirement, it is required to maintain a “posted panel” which includes at least six physicians, including one orthopaedic and one minority physician - and no more than two industrial clinics. (Of note is that the Board reserves the right to grant certain exceptions to these requirements and this can be discussed with your legal counsel in greater detail). The employer also needs to actually post the panel of physicians in a “prominent” place upon the business and otherwise taking all reasonable measures to ensure that employees understand the function of the panel and are given appropriate assistance in getting medical treatment. If the employer does not follow these requirements, it does so at its own risk, as the Board will most likely find that the employee is allowed to select any physician of his choice at the expense of the employer.
With this is mind, the first step is to choose reputable physicians for your posted panel – (and periodically check with the chosen providers to keep addresses and phone numbers current – and to make sure they are still in business). After establishing the posted panel the employer should ensure the panel is posted in a prominent place. (A blank posted panel with no medical providers – or a nicely filled-out panel stuck in your bottom desk drawer will not pass muster with the Board!) In addition, it is highly recommended that, upon hire, an employee is shown and provide a copy of the posted panel, is explain the function of the panel and signs a written acknowledgement documenting this.
If an employee sustains an accident the employer should endeavor to meet with the injured worker as soon as practical and facilitate choosing a physician to provide treatment going forward (regardless of whether there has been prior emergency treatment). Specifically, as O.C.G.A. §34-9-201 provides, the employee “may accept the services of a physician selected by the employer” - or may select a physician on their own. Either way, the employer should, again, require the employee sign an acknowledgement of the initial choice of physician. If the worker later wants to use his or her (one time) right to change doctors, the employer should follow the same protocol and document this choice and change, in writing. You should always file a WC-200(a) Change of Physician by Consent for any additional changes thereafter. If these steps are followed, there should not be any question later in the claim as to who your ATP is. In turn, this will lead to reduced litigation over physician issues and will greatly strengthen any defense against an employee’s request later to unilaterally change to a more liberal physician.
However, despite the best efforts to establish and maintain a valid posted panel, employers, adjusters and administrators may encounter overzealous employees (or, more likely, claimant attorneys) who will argue that a posted panel is invalid for a number of reasons and claim the employee should be able to choose to treat with a physician of his or her choice at the employer’s expense.
Faced with this occurrence, it is useful to know where you stand. Frankly, if the employer has made a glaring and obvious omission regarding the posted panel, the employee may have a point. However, often, a posted panel is perfectly valid (despite what the claimant’s attorney argues). Common arguments include that a panel is invalid because a physician has moved, an address is wrong or a phone number is incorrect. However, recent trial decisions show that the Board will not automatically rule that a panel is invalid based upon a technicality.
First, it is important to remember that the employee has the burden of proving a panel is invalid. Board Rule 201(a)(1)(i). Although claimants have argued that various panels were invalid due to incorrect addresses, wrong (even duplicate) phone numbers and generally outdated contact information, instead of focusing on these technicalities, the Board has focused on whether a panel was 1.) valid at the time of the accident, 2.) whether the claimant made a reasonable (or any, for that matter) effort to contact a provider and, 3.) whether the medical providers were “reasonably accessible”. So, the “take away” from the recent Board decisions is, although all diligent and reasonable efforts should certainly be made to keep a panel current, if the claimant cannot prove the panel was invalid at on the date of accident (which is hard to do) and if the claimant cannot show that he or made a diligent effort to schedule an appointment or otherwise did not have “reasonable access” to a physician, the Board may very well side with the employer on this issue, despite small deficiencies that may be found on a panel.
In closing, a posted panel can be an employer’s best friend if taken advantage of properly. It can also be an employer’s nightmare if neglected. The opportunity afforded to the employer to be able to choose a select number of physicians to provide treatment from the outset of a claim is often underappreciated and undervalued. Getting and keeping the right physician could make a great deal of difference in medical treatment and, ultimately, the settlement value of a claim. It could even be a factor as to whether a claim deemed catastrophic or not. This advantage can be squandered by not maintaining a valid panel or by thinking you do not have a valid panel. Therefore, get ahead of the game and stay there by having a valid panel, maintaining it and get legal advice, if needed, if the validity of your panel is challenged.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley