In compensable claims where treatment has dwindled, there are times when it seems workers’ compensation claimants may not be very motivated to attend medical appointments. This may occur for any variety of reasons, from a simple lack of need to a more insidious avoidance of a potential full-duty release. It can be frustrating to keep paying indemnity benefits indefinitely in these cases – that is not how the workers’ compensation system is supposed to work!
Pursuant to OCGA §34-9-200(c), workers’ compensation claimants must submit to examination by the authorized physician at reasonable times. When and if these examinations are obstructed, the right to compensation “shall be suspended,” by Board order, “until such refusal or objection ceases,” unless some reasonable justification can be shown to the Board for the failure or refusal to attend appointments.
For many years, the standard process to return a reluctant or recalcitrant claimant to the doctor has been to file a Motion to Compel Compliance with Medical, showing a pattern of missed appointments. After filing the Motion, the claimant or their attorney would have twenty days to file an objection, citing their justification for the missed and after that, an Order may (or may not) be received to compel the claimant to attend the next authorized medical appointment.
If the claimant failed to attend the second appointment, Employer/ Insurer could file a Motion to Suspend Benefits for failure to comply with medical. Again, counsel for the claimant would have a chance to file an objection, and try to justify any failure to attend. The Judge could then, in their discretion, choose to order suspension of benefits.
Petitions for Medical Treatment (PMTs) were created in 2017 by Board Rule 205(c), to help resolve disputes over medical treatment faster. Specifically, these helped claimants force Employers and Insurers to “show cause” as to why any recommended treatment was not being authorized. Claimant’s attorneys use these frequently to force medical decisions, but it did not do much for Employers and Insurers. In 2019, the PMTb was introduced in the same Board Rule to help change that.
The PMTb Process
The PMTb allows Employer/ Insurers to force claimants to “show cause” for failing to attend medical appointments. This has largely the same effect as a Motion to Compel Compliance with Medical, but on a much faster timeline. Pursuant to Board Rule 205(c)(2), the PMTb form can be filed any time a claimant fails to attend an appointment with an authorized provider, as long as they have been provided with at least five business days notice of the appointment. The claimant or their attorney must then show some reason the claimant should not be ordered to attend the next appointment, at a telephonic conference with a judge scheduled not more than five business days from the date of the petition.
The claimant may either file an agreement to attend the next scheduled appointment, or move forward with the conference. If the phone conference goes forward, the claimant must either show a good reason they cannot attend an appointment or they will likely receive an Interlocutory Order to attend the next authorized appointment from the Administrative Law Judge. This effectively mimics the process of missing an appointment, filing a Motion to Compel Compliance with medical, giving opportunity for objection, and receiving an Order from the Judge in the span of about ten days.
If the claimant does not attend the next authorized appointment after agreeing or being ordered to do so, Employer/ Insurer may then file a WC-PMTb Section D, again requesting the claimant “show cause” as to why their income benefits should not be suspended. A telephone conference will be scheduled again within five business days. If the claimant cannot show cause or does not attend the conference, the Administrative Law Judge may issue an Interlocutory Order for immediate suspension of income benefits. This greatly speeds up the Motion to Suspend process, decreasing it to potentially less than a week. For claims that can linger on for months or years, this can be an invaluable tool to move the claim along or shepherd the file toward its eventual closure.
Anecdotally, some Administrative Law Judges believe that the PMTb form is still underutilized by Employers and Insurers, although its use is picking up. This may partially be due to confusion on the administration of the process. Some judges may prefer to see a lot of evidence submitted with the forms, almost akin to filing a brief with exhibits alongside the PMTb form itself. Although this could be cumbersome, it is still a lot faster than the Motions process.
However, as use of the PMTb process picks up, it appears more Employers and Insurers are having success simply filing the initial form with an attachment showing the claimant was advised of the appointment at least five days in advance. Although some Administrative Law Judges have sought a record from the doctor office showing the appointment was missed, many do not. Certainly, if there is any assertion that a claimant actually did attend an appointment, this could be brought up at the time of the teleconference or filed as an objection.
There has also been some success with a very plain filing for the second round of the PMTb requesting suspension, although some judges may want to see more evidence from the physician office. Even in that case, getting the evidence and re-filing can be very fast under this process.
Anecdotally, many attorneys and Administrative Law Judges are finding the Petitions to get the claimant to attend their medical appointments are successful. Thus, a relatively small percentage are proceeding to suspension. However, this is still an invaluable tool from keeping the claim from lingering for months or longer. This is especially true for pro se claimants who may not feel the same the impetus to keep a claim moving as a represented claimant might. Also, in cases where the claimant may have moved out of the area or become otherwise unable to attend appointments, this can close a claim which could otherwise remain open indefinitely.
Defense counsel is best situated to advise on these filings and react quickly to the Administrative Law Judge’s requests for teleconferences and evidence. As always, if you have questions or want to discuss, reach out to any of our capable workers’ compensation attorneys at Drew, Eckl and Farnham.