June 02, 2013 BY Taylor Poncz
The Power Of The Panel: Will Strict Compliance Be Enforced?
In any given workers’ compensation claim, there is potential for a multitude of disputes over issues running the gamut from entitlement to indemnity benefits, to an injured employee’s efforts to return to work. And while there are a seemingly infinite number of variables impacting whether an employer/insurer is responsible for paying indemnity benefits, the one thing that is always certain in non-controverted cases where an employee remains injured due to a compensable work injury, is that the employer/insurer are liable for paying medical benefits. O.C.G.A. 34-9-200 (a) statutorily obligates the employer/insurer to furnish the injured employee with medical treatment which is “reasonably required and appears likely to effect a cure, give relief, or restore the employee to suitable employment.” Inherently broad in its scope, the legislature reeled in the employer/insurer’s liability for medical benefits with O.C.G.A. 34-9-201(b)(1), which allows the employer/insurer to satisfy the requirement by the employer posting a panel of physicians identifying physicians from which an employee may accept medical treatment.
By only requiring the employer/insurer to authorize treatment with an authorized panel physician, and by vesting the employer/insurer with the right to select the physicians to be listed on the panel of physicians, the momentum shifts back slightly towards the employer/insurer, creating more of an equilibrium between the parties with regard to Claimant’s right to medical treatment and the employer/insurer’s obligation to pay for that treatment. For the employer/insurer to enforce the panel of physicians, the panel must first be valid. For a panel to be valid, O.C.G.A. 34-9-201(b)(1) provides that it must contain at least six physicians or professional associations or corporations of physicians who are reasonably accessible to employees. Of those physicians, at least one of the physicians must practice as an orthopedic surgeon, one must be a minority physician, and no more than two of the providers can be industrial clinics.
One of the easiest ways for a claimant’s attorney to trigger a swing of momentum back to claimant’s favor is to prove that the panel is invalid. O.C.G.A. 34-9-201 (f) warns that if the employer fails to provide any of the procedures for selection of the physicians, then the employee is entitled to seek treatment off of the panel with a physician of his choosing. From an employer/insurer’s perspective, this could be a huge blow to not only the value of the claim, but also to the reliability of the medical treatment being provided. Unfortunately, all too often in practice we see claimants’ attorneys taking advantage of the panel’s invalidity to select the most liberal physician possible who is nearly guaranteed to operate, put the claimant on an endless supply of pain pills and so often totally disable the claimant. Read: Increase the value of the claim.
Consequently, ensuring the panel is valid is of extreme importance and the pattern emerging is that Administrative Law Judges are going to be strict about an employer/insurer’s compliance with the statutory requirements for a panel to be valid. The plain language of the O.C.G.A. 34-9-201(b)(1) requirements for a panel to be valid seems fairly clear with regard to the makeup of the types of providers that must be included. However, the statute provides that these providers must be “reasonably accessible”, and that brings up a multitude of questions over what that means. Does the name, address and phone number all have to be exactly right for the provider to be reasonably accessible? What if one digit of the phone number is off? What if the provider’s name is wrong? What if just the suite number listed is wrong, but the building and street address are right? How do these errors, whether inadvertent or not, impact how accessible the provider is and furthermore, what, if any, effort is reasonable for the actual employee to make to identify and locate the provider when there is an error on the panel?
There is no real statutory guidance for what information has to be listed on the panel for the provider to be “reasonably accessible” and in Georgia, the binding case law is virtually non-existent as well. However, a recent decision by the Appellate Division of the State Board of Workers’ Compensation suggests that even the smallest of errors on a panel can invalidate the provider, threatening the validity of the entire panel if it results in an insufficient number of valid providers listed.
This June 2012 Appellate Division Award found that the Administrative Law Judge erred in finding that the wrong address for a medical provider did not invalidate the panel. At the trial court level, the Administrative Law Judge found that while the address for the orthopedic center was listed incorrectly on the panel, the employee could have easily have found the address. The Judge reasoned that a mistaken address should not invalidate the panel. The Appellate Division disagreed, and found that the employer’s failure to list the address accurately invalidated that provider from the panel (and thus, invalidated the panel in its entirety), since the provider was no longer “reasonably accessible” to the employee, notwithstanding the fact that the orthopedic center was a well-known provider. Based upon the Appellate Division’s ruling then, “reasonably accessible” would mean that the address has to be completely correct.
From a defense standpoint, this type of ruling also essentially means that the employee need not make even the slightest of efforts to access the provider as listed, and surely that can’t be reasonable. Can it? The Appellate Division seems to think so and so does another Administrate Law Judge who ruled similarly in a recent Motion brought before her on a change of physicians on the basis that the entire panel was invalid because the medical provider’s name was listed incorrectly on the panel. In that case, the address and the phone number for the medical center were correctly provided on the panel, but the name of the provider was incorrect. It actually contained the name of a different doctor’s office not located at the address listed. Defense counsel contended, unsuccessfully, that the inadvertent error in the name of the provider did not change the fact that the employee would have reached a viable medical provider authorized to treat the employee under workers’ compensation had the employee either physically gone to the address listed or simply called the telephone number listed on the panel to confirm the name. In other words, the provider was “reasonably accessible”, albeit with a small amount of effort on the employee’s part to identify the provider. The Administrative Law Judge disagreed, and in line with the reasoning behind the June 2012 Appellate Division Award, found that the named provider did not correspond to the telephone number and address listed on the panel, and as such, that provider was not reasonably accessible to the employee. Consequently, the panel was left with only 5 reasonably accessible providers which violated the validity requirements of O.C.G.A. 34-9-201(b)(1) and as a result, invalidated the panel in its entirety. To make matters worse, not only did the Judge designate the non-panel selection as the authorized treating physician, but the Judge found the defense unreasonable and awarded assessed fees.
Arguably, this type of ruling suggests that the employee is under no obligation whatsoever to make even the slightest effort to look in the phone book or online or call the number listed to confirm the address or the name of the provider. Then why would the statute says “reasonably” accessible if the Board is not going to obligate an employee to make even the slightest effort to locate the provider? This question remains unanswered.
The bottom line is that the stakes are high for the employer/insurer to make sure the panel has no errors in it, typographical or not, since O.C.G.A. 34-9-201 (f) allows an employee to select the authorized treating physician off panel if the panel is invalid. As a practical matter, one option employers have is to list an extra provider or two on the panel so that if one provider’s information is inaccurate and becomes invalidated, the panel as a whole could still have the requisite six “reasonably accessible” providers, and as such, would not be invalidated in its entirety. Another option is to make sure panels are up to date. Employers should call each number listed and ensure that the number is still in service and that the address and names of each providers are accurate and current. While the panel listed on the date of accident will apply to a particular claim, there is nothing stopping an employer from updating the invalid panel and preventing the same consequence on a subsequent claim. In the end, taking the time to periodically ensure the panel is accurate is well worth not sacrificing the employer/insurer’s right to control medical.
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