It’s no surprise that a large portion of the money spent in a workers’ compensation claim goes towards a claimant’s medical treatment.
It’s no surprise that a large portion of the money spent in a workers’ compensation claim goes towards a claimant’s medical treatment. Therefore, it is critical that an injured worker treats with a reputable physician who provides suitable treatment geared towards getting the employee back to work as fast as possible. Fortunately, the Board Rules give the employer/insurer the opportunity to maintain control over a claimant’s medical care in workers’ compensation claims.
Unfortunately, among the cases that make it to litigation, many of them got there by the simple fact that the employer/insurer made one of the most avoidable mistakes: they had an invalid panel or the claimant was not made aware of the panel and its function, thereby giving the claimant the argument he is entitled to treat with the doctor of their choice. In this situation, from the moment the employee is injured, the employer/insurer has already relinquished control over the most important aspect of any workers’ compensation claim: the medical treatment.
It’s a story we all know a little too well: an employee is injured in the scope of their employment and after the employee (or more likely, their attorney) reviews the employer’s panel of physicians, the employer learns that one (or more) of their panel entries is incorrect, which gives the claimant an argument that the employer’s panel as a whole is invalid and that they are entitled to pick an ATP of their choice. From there, the injured employee, again with the help of their attorney, will carefully choose an ATP that they feel will help them out the most. They will be looking for the physician who is most likely to recommend the most aggressive treatment, keep them out of work, and put them under permanent restrictions, thereby increasing the potential value of their claim.
Although the importance of the panel is common knowledge in the realm of workers’ compensation, we regularly begin our defense of a claim by defending the validity of an employer’s panel and by arguing against the claimant’s attorney, who contends that his or her client is entitled to select an ATP of their choice due to the fact that the employer’s panel was invalid. Here’s some practical advice regarding panel formation and good panel practices to help the employer/insurer strengthen its first line of defense.
Under O.C.G.A. §34-9-201 and Board Rule 201, an employer is required to provide medical treatment to a worker who is injured in the scope of their employment. The employer/insurer can keep control over the medical if they maintain a valid “panel of physicians,” which includes at least six physicians or professional associations, including at least one orthopedist, one minority, and no more than two industrial clinics. If you are in need of recommendations for reputable physicians for an employer’s panel, do not hesitate to contact your legal counsel, who will be happy to provide you with suggestions.
Additionally, the employer’s panel of physicians must be posted in a “prominent” place in the business. Another requirement is that the employer needs to “take all reasonable measures” to ensure that its employees (1) understand the function of the panel (2) understand their right to select a physician from the panel in case of injury and (3) are given appropriate assistance in contacting panel physicians. If an employer fails to comply with the above mentioned panel procedures, then the claimant has the ability to treat with a doctor of their choice.
As a good practice, we generally recommend including more than six physicians or professional associations on the employer’s panel. Physicians will sometimes change practice locations, start a new practice, or retire. Similarly, industrial clinics or practice groups may close or move to a new location. When these changes occur, panel entries may no longer be correct as addresses, phone numbers, and physicians may have changed, which gives the claimant an argument that the employer’s panel as a whole is invalid.
Fortunately, however, the Board will not automatically rule that an employer’s panel is invalid if an address or phone number is incorrect. Pursuant to Board Rule 201(a)(1)(i), the medical providers must be “reasonably accessible” to the claimant. Moreover, the party challenging the validity of the panel has the burden of proof that the panel violates the provisions of O.C.G.A. §34-9-201 and Board Rule 201. With that being said, we recommend reviewing the panel periodically to make sure that addresses, providers’ names, and phone numbers remain current.
Another caveat of Board Rule 201(a)(1)(i) to keep in mind, is the employer/insurer’s opportunity to cure a panel defect in the event a panel physician refuses to provide medical treatment to an injured employee. In that regard, if a panel physician refuses to provide medical treatment to an employee who has already received medical treatment from another panel physician, the employer/insurer “as soon as practicable,” shall increase the panel for that employee by one physician for each such refusal.
To provide evidence that employer/insurer took all reasonable measures to ensure that employees understand panel and its function, we recommend that employers present all employees with a copy of its panel of physicians at the time of hire. Additionally, when the panel is presented, the employer should take the time to explain the purpose of the panel to its employees as well as get the employee to sign a written acknowledgement documenting that they have been made aware of the panel and its purpose. We also recommend that the employer holds yearly meetings to remind employees of the existence and function of the panel.
In the event that an employee reports an injury and is in need of medical treatment, we recommend presenting a copy of the panel to the employee and asking them to circle which doctor they would like to treat with and sign and date the panel. Then, keep a copy of it in their personnel file. Down the line, should a claimant’s attorney try to argue that their client wasn’t shown a panel, the employer/insurer will have evidence to the contrary.
If maintained and explained to employees, a panel of physicians is a useful tool in the employer/insurer’s tool belt to keep a workers’ compensation claim under control. However, if the employer/insurer does not take measures to ensure that their panel remains current and valid or doesn’t take the time to explain the panel to its employees, that same panel can quickly become the employer/insurer’s worst enemy. With a little upkeep and TLC, the employer/insurer can maintain a valid panel, which can have a dramatic effect on the course and cost of a workers’ compensation claim.