He who controls the medical controls the claim. In an accepted workers’ compensation claim, controlling the medical has a significant impact on the overall claim exposure and on leverage during settlement negotiations.
He who controls the medical controls the claim. In an accepted workers’ compensation claim, controlling the medical has a significant impact on the overall claim exposure and on leverage during settlement negotiations. Claimant’s attorneys are looking for any mistake to get a claimant to one of their doctors who will totally disable the claimant and recommend unnecessary medical treatment to drive up the claim value. Keeping a current posted panel of physicians is a critical part of claim control; however, there are many circumstances out of an insurer’s hands that invalidate a panel, including doctors moving office locations, retiring from practice, or deciding to no longer accept workers’ compensation patients. In these situations, claimant’s attorneys pounce on the opportunity to argue an invalid panel to have the right to select a doctor who will benefit their claim, not necessarily their client’s medical condition. Before conceding an invalid panel and losing control of the medical, it is important to consider whether a claimant can prove an invalid panel at the time of the injury.
The law regarding a posted panel is set forth in O.G.C.A. § 34-9-201, which outlines the requirements for maintaining a posted panel with respect to the number of physicians required on a panel who are reasonably accessible to employees. The statute also includes the remedy that if an employer fails to follow the procedures for providing a valid posted panel, an employee may select any physician at the expense of the employer. An employee challenging the validity of a posted panel of physicians bears the burden of proving that the panel is defective. Board Rule 201(a)(2). Interestingly, neither O.C.G.A. §34-9-201 nor Board Rule 201 include language on the controlling time period to assess the validity of a posted panel.
Despite the absence of specific language in the statute, the date of injury is the only time period that makes sense for determining the validity of a posted panel, particularly since the date of injury is the controlling time period throughout the general workers’ compensation scheme.
For example, TTD and TPD rates are controlled by the date of injury. O.C.G.A. §34-9-261 and 34-9-262. If an employee’s date of injury was between July 1, 1996 and June 30, 1997, the maximum TTD rate was $300.00, whereas if the date of injury is any time after July 1, 201, the maximum TTD rate is $550.00. Also, if an employee was injured in December 1996, but then passed away in 2014 as a result of the 1996 accident, the workers’ compensation rate on the day of accident for death benefits from 1996 controls, not the 2014 workers’ compensation rate. Additionally, the number of weeks that TTD benefits are allowable is determined from the date of accident. O.C.G.A. §34-9-261. The length of possible medical treatment is also determined by the date of accident. For injuries from an accident occurring before July 1, 2013, there was no time limit on medical benefits; however, after July 1, 2013, there is a 400-week cap from the date of accident on medical treatment in non-catastrophic cases. O.C.G.A. §34-9-200. Even the number of physicians on a panel has changed over the years, and again, the date of accident/injury controls on this issue. Prior to 2001, a valid panel was only required to have four physicians, whereas a valid panel after July 1, 2001 must have a minimum of six physicians. O.C.G.A. §34-9-201. In that situation, if an employee was injured in March 2001, received a valid panel with four physicians, received medical treatment, and then the employee challenged the validity of the panel in August 2001, the controlling time period would have been the date of injury. An injured employee could not prove the panel with four doctors was invalid for not having six doctors when the panel of four doctors was valid on the date of injury.
In assessing the validity of a panel, there has to be a controlling time period for determining if a panel is valid for both the employee and the employer. Foremost, an injured employee selects a physician for treatment at the time of the accident and injury and, thus, that is the time period to assess whether the employer/insurer has maintained a panel with the required number of providers accessible to the employee for treatment. To find otherwise, a panel could be challenged and deemed invalid at any point in time while an injured employee seeks medical treatment for a work-related injury. In some cases, medical treatment in workers’ compensation claims goes on for years. There would simply be no reason to even have a posted panel in the first place if an injured employee can challenge the validity of the panel years later after an employer/insurer have been providing medical treatment, simply because a provider changed an address or telephone number. Unless there is a controlling time period, the burden would be impossible for an employer who has the responsibility to maintain a panel. It is reasonable to place the responsibility of having a valid panel at the time of the injury; however, it is an unreasonable and impossible burden to place on an employer/insurer that a panel has to be valid at any point in time throughout the course of the claim, which can be years in many cases. For a variety of reasons out of the employer’s control, a panel doctor may choose to no longer accept patients, practice at a different location, or simply change a phone number.
Despite the absence of a controlling time period identified in the statute, several recent ALJ and Appellate Division decisions reflect that the Board relies on the date of injury as the controlling time period to determine the validity of a posted panel. In SBWC Claim #2012-005108, the ALJ’s Order specifically references “the date of injury” in analyzing a panel issue. In that claim, the Order states that the employee was injured on February 3, 2012, and “it was undisputed that on February 3, 2012, the employee was given an invalid panel.” The Order further states that the reason for invalidating the panel was because the panel “did not contain the proper number of available physicians…at the time of the injury.” The Order in SBWC Claim #2012-005108 was adopted by the Appellate Division on November 1, 2012.
There are several other Awards that reflect the Board’s position on this issue. In SBWC 2012-017109, both the ALJ and the Appellate Division focused on whether the posted panel was valid at the time of the injury when the same number was listed twice for two different doctors. In fact, the ALJ specifically stated, “the real issue is whether or not the panel posted at the time of the injury was valid.” In another case, SBWC Claim # 2013-007884, the Appellate Division addressed the issue of whether a panel is invalid because an address for one provider was incorrect, and in doing so, the Appellate Division again focused on the time of injury as the controlling time period. In that claim, the employee was injured in February 2013, and was provided with workers’ compensation benefits. The evidence was undisputed that the panel listed a medical provider at his former address at the time of the employee’s injury, rather than his present address. Despite the undisputed fact that the panel listed an old address for the medical provider, the Appellate Division found that “the mere existence of an incorrect address for one panel physician on the date of the Employee’s injury, in and of itself, did not constitute a lack of reasonable access to, nor invalidate the panel.” Finally, in SBWC Claim # 2013-003344, a claimant sought a change of physician based on an invalid panel argument after the employer/insurer had been providing both medical treatment and indemnity benefits for months. At the hearing, the claimant testified that she called one of the panel doctors for a second opinion, and the phone number was disconnected. She then went to the address for that provider, as listed on the panel, only to find a sign on the door that the provider had moved office locations. However, at the hearing, the claimant only proved that the phone number was disconnected and the sign was on the door about seven months after the date of injury. Consequently, the ALJ denied the request for a change of physician, stating that the claimant did not provide evidence as to when the provider moved, and did not provide evidence that the panel was invalid at the time of her injury. The Appellate Division affirmed the ALJ decision in January 2015.
While none of these cases have been taken up to the Court of Appeals to weigh in on this issue, these opinions provide guidance in making decisions on whether to concede an invalid panel or litigate the issue and make a claimant meet his or her burden of proof. In situations where an employer/insurer has provided medical treatment for a period time, and a claimant’s attorney later alleges an invalid panel, do not give up the medical too soon. A couple of things to keep in mind: look at the timing of a claimant’s allegation of an invalid panel, investigate the panel violation before engaging in discussions with a claimant’s attorney on this issue, and get as much information as possible to determine the claimant’s evidence of a panel violation. Depending on the preliminary investigation of an alleged posted panel violation, consider denying the request and using discovery and the claimant’s deposition to determine if a claimant will be able to prove that the panel was invalid at the time of the injury, not months or years later, especially if medical treatment was furnished during that time period. In the end, an ATP can make or break a case; thus, don’t give up the panel and control of the medical too soon. It could be well worth the time and effort in the long run.