September 02, 2011 BY Taylor Poncz
Newton's Law Of…Workers' Compensation: For Every Defense Ime, There Is An Equal And Opposite Claimant's Ime
As a fundamental concept in the Georgia Workers’ Compensation system, by having a legal obligation to provide lifetime medical treatment for an accepted work injury, the employer/insurer, in turn, have the right to maintain a certain element of control over the medical treatment the injured employee receives. The panel of physicians, for example, is typically the first way the employer/insurer can exert its control over medical treatment. However, because in so many cases there are disputes over the medical necessity of medical treatment, the efficacy of the treatment rendered, and the status of an employee’s condition, another one of the most commonly used tactics by the employer/insurer to control medical treatment is the Independent Medical Examination.
Unlike for an employee, O.C.G.A. § 34-9-202(a), endows the employer/insurer with the ability to request the employee submit to an Independent Medical Examination as long as the employee claims compensation for an injury. The fact that the statute does not define the number of Examinations the employer/insurer can request is certainly an indication that the employer/insurer is intentionally given a liberal amount of latitude in utilizing the statute as a “checks and balances” tool against the medical treatment it must pay for.
It is nearly guaranteed that anytime the employer/insurer obtain an Independent Medical Examination in a claim, that the injured employee will also request an Independent Medical Examination with a physician of his/her own choosing. However, an employee has a much more limited entitlement to do so. O.C.G.A. § 34-9-202(e) provides for the employee’s right to request an Independent Medical Examination, but limits the employee’s right to only one Independent Medical Examination during the course of the claim, and further, provides that the injury must be an accepted compensable injury. Additionally, the statute limits the employee’s right by providing that the employee’s right to the Independent Medical Examination exists within 120 days of the receipt of any income benefits, that the examination must occur at a reasonable time and place within Georgia or within 50 miles of the employee’s residence, and that the employer/insurer receive written notice of the Examination. One question that has arisen as a result of the arguably vague wording of this part of statute’s constrictions, is whether the injured employee’s written request for the Independent Medical Examination must be sent to the employer/insurer within the 120-day period which is provided for in the statute, or whether the meaning of the statute is that the Examination must actually take place within that 120-day period. The implication of the meaning of the statute are significant in light of the fact that the employee only has one opportunity to obtain this Examination paid for by the employer/insurer, whereas the employer/insurer has an undefined number of Independent Medical Examinations at its disposal.
Consider a scenario where claimant’s counsel sends a written request to the employer/insurer seeking authorization of an appointment with claimant’s selection of a physician to perform an Independent Medical Examination. If defense counsel fails to react to the request in a timely manner, and as a result, is delayed in scheduling the appointment, or if the physician’s office has a scheduling conflict such that the appointment cannot be completed within 120 days from Claimant’s last receipt of indemnity benefits, has the employee effectively lost his right to obtain the Examination? In that scenario, is it the employee’s obligation to ensure the appointment is completed within 120 days, by either setting the appointment himself or selecting another physician if the original physician’s schedule is full, or else request a hearing if defense counsel or the physician’s office delays the process? Consider another scenario where Claimant’s counsel simply requests authorization of the Examination on the 119th day after the employee last received indemnity benefits? While technically still within the 120 days contemplated by the statute, nearly no defense counsel would be able to obtain an appointment with a doctor’s office with that short of notice. The plain language of the statute states, “after an accepted compensable injury and within 120 days of receipt of any income benefits, [an employee] shall have the right to one examination . . .” In these scenarios, with whom does the burden lay?
A defense attorney’s position would be that the employee is no longer entitled to the Independent Medical Examination if, for any reason, it did not take place within 120 days from the employee’s last receipt of benefits because the “right to one examination” only exists during that 120-day grace period. The statute does not specifically state that the request must be made in writing within 120 days, which the legislature conceivably could have done had it intended for it to be read that way.” The employer/insurer’s position is further based upon the contention that the employee has the obligation to ensure that the Examination is completed within 120 days of the last receipt of benefits, or in the very least, request a hearing on the issue.
On the other hand, Claimant’s counsel would argue that the employee would still entitled to the Examination because the written request was exercised within the requisite 120-day time frame contemplated by the statute. Furthermore, the employee’s position would be that so long as the employer/insurer is on notice within the 120 days from the employee’s last receipt of benefits that the Examination is being requested, the employee would not be responsible for the employer/insurer’s failure to timely schedule the Examination or the doctor’s own schedule which may not accommodate the time frame restrictions.
The outcome of the dispute over the meaning of the 120-day provision in the statute, in light of the fact that O.C.G.A. § 24-9-202(e) only allows the employee one Independent Medical Examination for the entirety of his/her claim, clearly has a significant impact on the employee’s development of the medical evidence in the case. Unfortunately, case law, nor the plain language does much to provide guidance on this issue. In practice, an Administrative Law Judge would likely lean towards the position of the employee since the employee would have no other opportunity to obtain an Independent Medical Examination absent a recommencement of benefits or paying for the Examination on his own. Further, the weight given to the findings of the Independent Medical Examination are still subject to the Judge’s discretion. However, given the utility of the Independent Medical Examination to an employee’s case, and the expense of the Examination to the employer/insurer, the language of the code section and the lack of clarification as to whether the Independent Medical Examination must be requested in writing, or actually completed, within 120 days from the employee’s last receipt of indemnity benefits, might be one for reconsideration by the legislature.
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