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Georgia Workers' Compensation

Medical Treatment for the Injured Worker

James J. Long, Esq.
Long & Holder, LLP
127 Peachtree St. NE
Suite 1515
Atlanta, GA. 30303

I. INTRODUCTION

The Georgia State Board of Workers’ Compensation 1998 Annual Report shows that insurers and self-insurers spend more on medical expenses than on indemnity benefits. In the past decade, a primary goal of the Board has been to reduce medical costs and the resulting insurance premiums to employers while still providing for quality medical care and a reasonable amount of choice for injured workers.

While income benefits paid to Georgia injured workers in Georgia are very low on a national basis, the medical benefits under Georgia law are excellent. There is no co-insurance and no deductible. Provided a claim is timely filed the benefits can extend for the employee’s lifetime. Medical benefits continue regardless of whether the employee is working for the same employer, whether the employee is working for another employer (absent an aggravation that may become the responsibility of the subsequent employer) or whether the employee is not working at all.

There are some significant caveats, however, that frequently render the system less than ideal. Notable among them are the necessity of seeking treatment with the authorized physician and the unfortunate recent trends that have made it difficult to obtain examination and treatment due to physicians’ insistence on obtaining preauthorization from the insurer.

This article will examine the requirements under Georgia law for providing medical treatment to the injured worker. Because the undersigned represents only employees and because the overwhelming majority of seminar attendees represent employees as well, the focus will be from the employee’s perspective.

II. BASIC REQUIREMENTS FOR MEDICAL BENEFITS TO BE COVERED UNDER THE GEORGIA WORKERS’ COMPENSATION ACT

Any analysis of whether a particular medical benefit is covered under the Workers’ Compensation Act must include the following basic elements.

A. Causation

In general, the need for the medical treatment must have arisen on account of the effects of a compensable injury. The employer/insurer may be responsible for diagnostic tests performed to determine if indeed the condition was caused by the injury. Board Rule 205(4), Old Dominion Freight Line v. Anthony, 216 Ga. App. 267, 454 S.E. 2d 574(1995). This may be true even if the tests determine it was not. Roberson v. Hartford Accident & Indemnity Co., 141 Ga, App. 558, 234 S.E. 2d 145(1977)

B. Effect A Cure, Give Relief, Or Restore The Employee To Suitable Employment

The treatment must be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment. O.C.G.A. § 34-9-200(a).

C. The Treatment Must Be Authorized

The treatment must be rendered through a provider that has been authorized in one of the many ways provided under the statute.

D. The Charges For The Medical Treatment Must Be Usual , Customary and Reasonable

The State Board reserves the right to approve all charges, both as to amount and necessity. O.C.G.A. § 34-9-205.

III. TIME LIMITATIONS

A. Statutory Authority

Statutes of limitation in workers’ compensation claims have been the subject of entire seminar papers. The basic statute of limitations is found in O.C.G.A. § 34-9-82 which requires that a claim be filed by the employee with the Board within one year after injury. However, if remedial treatment has been furnished by the employer on account of the injury, the claim may be filed within one year of the date of the last furnished remedial treatment. (There is a second basis for extension which is inapplicable here).

This is the so-called “all issues” statute of limitations. A worker who files his claim within one year of the date of the injury is entitled to lifetime treatment for a work injury. Wier v. Skyline Messenger, 203 Ga. App. 673, 417 S.E. 2nd 693 (1992). The worker will also have this lifetime right if the claim is filed within one year after the date of the last remedial treatment furnished by the employer. Failure to post a panel of physicians may toll the statute of limitations. Georgia Inst. of Tech. v. Gore, 167 Ga. App. 359, 306 S.E. 2nd 338 (1983) but there cannot be any gaps in treatment over one year in order to utilize this theory. Poissonnier v. Better Business Bureau, 180 Ga. App. 588, 349 S.E. 2nd 813 (1986).

Once income benefits are paid, the employee has a lifetime right to medical treatment. General Insurance Company of America v. Bradley, 152 Ga. App. 600, 263 S.E. 2nd 446 (1979).

It is therefore not necessary to file a claim if the claim has been accepted (i.e. income benefits have been paid) in order to preserve the right to medical treatment. In all cases, however, the best practice is for the practitioner to immediately file a claim upon commencement of representation of the injured worker.

B. All Issues v. Change of Condition

The other statute that limits workers’ compensation actions is found in O.C.G.A. § 34-9-104(b). It sets forth time limits after income benefits have been paid and then been suspended in which further application for income benefits may be made. This statute has no bearing on the analysis of entitlement to medical benefits. It only applies in the event of an accepted claim. In an accepted claim, even if receipt of income benefits is time foreclosed by this statute, entitlement to medical benefits continues.

IV. TYPES OF COVERED BENEFITS

A. Statutory Basis

O.C.G.A. § 34-9-200(a) provides the statutory basis for the provision of medical care.

It states:

“The employer shall furnish the employee entitled to benefits under this chapter such medical, surgical, and hospital care and other treatment, items, and services which are prescribed by a licensed physician including medical and surgical supplies, artificial members, and prosthetic devices and aids damaged or destroyed in a compensable accident, which in the judgment of the State Board of Workers’ Compensation shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment.”

B. Specific Expenses

1. Medical, Surgical and Hospital Care

All such care will be covered provided that the other requirements of the act are met.

2. Other Treatment, Items and Services

This section has spawned the most litigation. The key is the necessity of a prescription by the licensed (and authorized) physician. Absent the prescription, the employee has no chance of requiring the insurer to pay for the particular item. With the prescription, the employee may be entitled to a very wide range of items.

a. Artificial Members and Prosthetic Devices and Aids

These are authorized in the statute. There is no limit to the number of replacement items. Thompson v. Wilbert Vault, 178 Ga. App. 489, 343 S.E. 2nd 515 (1986).

b. Miscellaneous

A seriously injured worker may be entitled to a panoply of services ranging from in home attendant care to specially equipped automobiles to specially adapted housing to spas and swimming pools. An excellent analysis of the employer’s potential liability for these and other items may be found in Richard C. Kissiah’s treatise, Georgia Workers’ Compensation Law published by Michie.

A frequently overlooked item and the subject of potential tremendous exposure on the part of the insurer is in home non-medical attendant care. An injured worker who cannot take care of his own basic personal needs and cannot be left alone may require the 24 hour presence of a caretaker. Most frequently, this is the individual’s spouse. This may require the spouse to either cease working or to refrain from obtaining the employment that he or she now must seek in order to compensate for the loss of income from the injured worker. The fee schedule discussed below contemplates that a family member can provide these services, finding that the usual, customary and reasonable charge would be $7.00 per hour with a maximum of 12 hours per day. The hours can be extended if the Board deems it to be reasonably necessary. Chatham County Dept. of Family & Children Services v. Williams, 221 Ga. App. 366, 471 S.E. 2nd 316 (1996).

V. THE AUTHORIZED PHYSICIAN

The employer/insurer is only liable for expenses arising from treatment by an “authorized” physician. Georgia Power Co. v. Brasill, 171 Ga. App. 569, 320 S.E. 2d 573 (1984). Treatment can be authorized in many ways.

A. The Panel of Physicians

Any analysis of authorized medical treatment starts with the panel of physicians first promulgated in 1978. Code 1933 § 114-504. The employer was required to prominently post and explain the use of the panel which contained the names of at least three physicians. Board Rule 201(a) required that they be non-associated physicians (a group, professional association, or professional corporation is counted as one physician). The employer who complied with these requirements could restrict treatment to these doctors.

Effective July 1, 1990, the panel requirement was increased to four physicians. O.C.G.A. § 34-9-201. Effective July 1, 1992, one of the physicians had to practice the specialty of orthopedic surgery and not more than two of the physicians could be industrial clinics. A requirement was also made that a minority physician be on the panel but failure to comply with this requirement, unlike the preceding two, would not invalidate the panel. O.C.G.A § 34-9-201.

On July 1, 1992 the Board moved into the world of managed care. The employer could now use one of three panels listed in O.C.G.A. § 34-9-201(b), the “traditional” panel, the “conformed” panel or “Managed Care Organization Procedures”. The latter was applicable only in the event the employer had contracted with a “workers’ compensation managed care organization” (WC/MCO). O.C.G.A. §§ 34-9-201(c) and 34-9-208, Board Rule 208.

Requirements for the traditional panel remained the same as had been prior to the new law. Board Rule 201(b)(1). In addition to the requirements of the traditional panel, the conformed panel requires a minimum of ten physicians together with the presence of general surgeons and chiropractors. Board Rule 201(b)(2). The WC/MCO requires inclusion of minority providers and specialists in a wide variety of areas. Board Rules 201(b)(3) and 208(a)(1)(E).

Regardless of the panel, the employer must prominently post it on the business premises and take all reasonable measures to ensure that employees understand the function of the panel, the right to select a physician from it and are given assistance in contacting panel or managed care organization members when necessary.

B. The Employer/Insurer Loses Control of the Authorization Process

The employer/insurer can lose the ability to control the selection process in several ways.

1. Failure To Comply With Panel Requirements

The employer who fails to comply with the panel requirements of O.C.G.A. § 34-9-201(b) must pay for the services of any physician chosen by the employee. O.C.G.A. § 34-9-201(f). This right is not unfettered, however. Board Rule 201(c) authorizes the employee to make what is commonly known as “one free change” to another physician provided that notice has been given to the employer. Thereafter, any further change must be either through the agreement of the parties or by order of the board.

2. The Claim is Controverted

If the employer/insurer controverts the claim, it cannot restrict the employee to treatment by the panel physicians even if the panel is valid. Board Rule 201(b). The theory is that the employer/insurer, by denying all responsibility for the claim, should not have the right to limit the employee in the selection of physicians. This derives from O.C.G.A. § 34-9-201(d), which permits the selection of a non-panel physician if there is a justifiable reason for the inability of the employee to select a panel physician.

This applies only for services obtained after the claim is controverted. State of Ga. v. Tungler, 181 Ga. App. 21, 351 S.E. 2d 248 (1986), Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654, 350 S.E. 2d 299 (1986). The Tungler court found that to give retroactive effect to Board Rule 201(b) would be to encourage the employee to seek services of a non-panel physician and would have a chilling effect on the employer’s decision to controvert, for that controvertion would result in automatic exposure for all expenses incurred with a non-panel physician. This applies even if the notice to controvert was not timely. ITT-Continental Baking Co. v. Powell, 182 Ga. App. 533, 356 S.E. 2d 267 (1987). If the claim is ultimately found to be compensable, Board Rule 201(b) restricts the employee to the “one free change”.

There is a distinction between controverting the entire claim and controverting medical treatment. In Georgia Baptist v. Moore 219 Ga. App. 171, 464 S.E. 2d 265 (1995), the employee went to an unauthorized non-panel physician, a chiropractor, who disabled her. The employer controverted medical bills and the resulting disability. The Court of Appeals found that this was not tantamount to controverting the entire claim and therefore found the chiropractic treatment to have been unauthorized.

3. The Employee is Denied Authorized Care

A line of cases has held that if the employee is precluded from seeking medical treatment the obligation to seek treatment from a panel physician is thereby eliminated and the expenses of a non-panel physician become authorized. These cases usually arise in the context of an employee whose medical treatment has been authorized but subsequently, due to the physician’s decision, the employer/insurer does not permit further treatment.

In Georgia Power Co. v. Brasill, supra, the employee’s initial medical expenses with the panel physician were paid by the employer/insurer. Subsequently, the company doctor opined that the employee’s most recent symptoms were not the result of the work injury. The employer/insurer informed the employee that any further medical expenses should be submitted to group insurance. In response, the employee sought treatment from a non-panel physician whose opinion was that the claimant’s continuing condition indeed arose from his work injury. The Court of Appeals held that employer/insurer had denied him medical care and the employee was justified in seeking the services of a non-panel physician.

In Boaz v. Kmart Corporation, 254 Ga. App. 707, 334 S.E. 2d 167 (1985) the company doctor found that the employee was “cured” and released him from treatment. Despite the employee’s complaints, the employer/insurer refused to allow him to obtain further treatment. The employee subsequently went to a non-panel physician and ultimately had two back surgeries. The subsequent physician found that the condition requiring surgery had been caused by the work injury. The Georgia Supreme Court, citing Brasill, held that the employee had been denied authorized care and ordered the employer/insurer to be responsible for the expenses from a non-panel physician. In accord is Bel Arbor Nursing Home v. Johnson, 192 Ga. App. 454, 385 S.E. 2d 315 (1989).

Pritchard Services v. Lett, 183 Ga. App. 298, 358 S.E. 2d 842 (1987) extended the ruling in Boaz, apparently finding that being released to return to normal work was equivalent to being released as cured. Similarly, in Owens-Illinois, Inc. v. Champion, 203 Ga. App. 736, 417 S.E. 2d 703(1992), the Court of Appeals found that the company physician’s return of the employee to work as a forklift operator and not scheduling a follow up appointment constituted a denial of care within the meaning of Boaz. In Vulcan Materials Co. v. Pritchett, 227 Ga. App. 530, 489 S.E. 2d 558 (1997) the release by the treating physician to return to work with no restrictions stating “he would see the claimant again if he had any change in his symptoms”, was also found to be a denial of care authorizing the employee to seek other physicians.

Compare Kmart Corporation v. Anderson, 166 Ga. App. 421, 304 S.E. 2d 526 (1983) which held that the employee who had sought treatment from all three of the panel physicians, but who subsequently received treatment from a non-panel physician, was not entitled to have those latter expenses paid by the employer/insurer. The distinction, as noted in Boaz, supra, was that despite the employee’s unhappiness with the treatment that she was receiving, she was still actually receiving treatment and had not been released from care.

How should the practitioner approach this? If the employee’s treatment needs are urgent, concerns for payment become secondary. The practitioner should employ all reasonable means to obtain treatment while concurrently seeking a change of physician through the Board. If there is no urgency, the employee should wait to see the doctor until after the change of physician has been processed through the Board.

4. Failure to Have Insurance Coverage

If the employee does not have workers’ compensation insurance it cannot restrict the employee to a panel physician. Kwon v. Fleming, 184 Ga. App. 861, 363 S.E. 2d 28 (1987).

C. Emergency

The employee may see a non-panel physician in an emergency situation but only for so long as the inability to see a panel physician continues. O.C.G.A. §§ 34-9-200(d), 34-9-201(c). An emergency has been defined to be “an unforeseen occurrence or a combination of circumstances which calls for immediate action or remedy; pressing necessity, exigency”. What constitutes an emergency is a question of fact to be resolved by the Board. Owens-Illinois v. Champion, supra.

D. Change of Physician

1. “One Free Change”

Authority for the concept of “one free change” is found in many places. The employee may make one change from one physician to another on the same panel without prior authorization of the Board with respect to the traditional panel [O.C.G.A. § 32-9-201(b)(1), Board Rule 201(a)(1)], the conformed panel, [O.C.GA. § 34-9-201(b)(2), Board Rule 201(a)(2)] and the WC/MCO (Board Rule 208(a)(1)(K)(I)). No prior notice is required.

Board Rule 201(a)(2) as originally enacted limited this change with respect to a conformed panel to the period within 60 days of the date of the injury. This limitation was deleted on July 1, 1998. Because this limitation no longer exists and because of the more onerous requirements of the conformed panel, including the presence of chiropractors, the conformed panel will rarely be encountered.

As noted above, Board Rule 201(b) extends this concept to a controverted claim after it becomes accepted as compensible. Board Rule 201(c) applies it when there is no properly maintained and constituted panel. Both require notice to the employer prior to the selection of the subsequent authorized treating physician.

2. Board Approval

O.C.G.A. § 34-9-200(b) empowers either the employee or the employer/insurer to petition the Board for a change of physician or treatment or designate other treatment or another physician. The newly designated physician becomes the authorized physician for whose expenses the employer /insurer would be responsible. The opposing party is given fifteen days to object.

Board Rule 200(b)(1) prescribes the use of form WC-200b by both the moving and objecting party. The rule contemplates the use of both documentary evidence and testimony in affidavit form.

A request for a change of physicians is appealable pursuant to Columbus Foundries, Inc. v. Moore, 175 Ga. App. 387, 333 S.E. 2d 212(1985). Because the only ground for appeal would be that the Board had abused its discretion, as much documentation and affidavit testimony as possible should be submitted in order to establish a record upon which the court can rule.

Prior to 1990, there were no objective guidelines in this area. That year Board Rule 200(b)(2) was added which lists thirteen non-exhaustive factors upon which the moving party can rely in making its request.

3. Mediation

Arguably the most progressive change adopted by the State Board in the 1990’s has been extensive implementation of Alternative Dispute Resolution (ADR). Board Rule 100 established an Alternative Dispute Resolution Unit. On July 1, 1995, O.C.G.A. § 34-9-100(b) was amended to allow the Board to direct the parties to participate in mediation conducted under the supervision and guidance of the Board.

Contested change of physician motions are now routinely referred to the ADR Unit. Usually each party is ordered to come to the mediation conference with a list of three acceptable alternative physicians. Pursuant to Board Rule 100(d), communications within the conference are confidential. The exception is the list of each party’s physicians which are admissible should the matter go to a hearing before an Administrative Law Judge. In order to compel further compliance with this process, the Board amended Rule 100(e) effective July 1, 1996 to mandate that the employee and a representative of the employer/insurer with authority to resolve all pending issues must be in attendance and that the employer’s attorney’s presence alone is not sufficient.

While ADR is very effective at dispute resolution, in this context it can have the effect of moving the employee away from the desired physician. Some claimant’s attorneys, knowing that the employer/insurer will object to whomever they select, will ask for a physician that is really a second or a third choice and place their primary choice on the list.

Pursuant to Columbus Foundries, supra, there is no limit on the number of times a moving party can request a change of physician.

E. Referral By Authorized Physician

1. The Former State of the Law

There has been a tremendous amount of change in this area in the past ten years. Prior to Brown v. Transamerica IMS, 200 Ga. App. 272, 407 S.E. 2d 430 (1991) and Lee Fabricators v. Cook, 203 Ga. App. 450, 417 S.E. 2d 35 (1992), the prevailing assumption had been that under the language of former O.C.G.A. § 34-9-201(c), which allowed the authorized treating physician to “arrange for any consultation, referral and extraordinary or other specialized medical services as the nature of the injury shall require”, that a referral by an authorized physician to another physician made the physician to whom the referral was made authorized as well. This second physician could then, in turn, refer to another physician as well, ad infinitum. No approval was required either by the employer/insurer or by the Board. Brown and Lee Fabricators essentially found that, in order to effect a change of physician from the authorized treating physician, O.C.G.A. § 34-9-200(b) required Board approval for such a change.

2. Remedial Changes

These decisions threatened to overwhelm the Board with change of physician requests. In response, the legislature passed amendments effective July 1, 1994 to O.C.G.A. §§ 34-9-201(b)(1) and 34-9-201(b)(2). These deleted the former O.C.G.A. § 34-9-201(c) and inserted modifications into both the traditional panel and conformed panel requirements. Now the authorized treating physician can refer for specialized medical services but the provider to whom the referral is made is not permitted to arrange for any additional referrals. There is no equivalent, however, in Board Rules 201 or 208 with respect to the WC/MCO. While the rules of the WC/MCO likely would permit this, the employee who could not obtain approval for the referral would have to go through the dispute resolution process set forth in Board Rule 208 and, if unsuccessful, petition the Board using Board Form 200b.

Relying on this change in this law, Lee Fabricators was explicitly overruled in Capital Atlanta, Inc. v. Carroll, 213 Ga. App. 214, 444 S.E. 2d 592 (1994). The statute was given application to injuries prior to July 1, 1994 in Barnes v. City of Atlanta Police Dep’t., 219 Ga. App. 139, 464 S.E. 2d 609 (1995), and Porter v. Ingles Mkt, Inc., 219 Ga. App. 145, 464 S.E. 2d 212 (1995).

3. Preauthorization

The upheaval in this area, combined with the increased financial pressure perceived by the medical community, has made it more difficult for employees to get treatment. More than ever before, medical providers are seeking pre-authorization in workers’ compensation cases. In response to this, Board Rule 205 was amended effective July 1, 1997. Board Rule 205(b)(2) was added to emphasize that advance authorization is not required as a condition for payment of services rendered. Subsection (3) was added allowing an authorized treating physician to seek pre-authorization/pre-certification for treatment/tests and requiring the employer/insurer, within 30 days of the receipt of a written request, to either authorize or controvert the treatment/test and, if controverting, to state the specific grounds for the controvertion. Medical treatment controverted on the grounds that the treatment is not reasonably necessary places the burden of proof upon the employer. Treatment controverted on the grounds that it was either not authorized or unrelated to the compensable injury places the burden of proof upon the employee.

In the WC/MCO context, the parties must go through their internal dispute resolution process set forth under Board Rule 208(f). This process must be completed within 30 days of written notice. If there is no resolution within the 30 days, Board Rule 205(b)(3)(d) gives the employer or insurer an additional 15 days from notification to authorize the treatment/test or controvert the treatment/test. The employer or insurer has a total of 45 days to comply with this authorization provision.

The employer that fails to either timely controvert or authorize becomes responsible for the requested treatment/ test. Board Rule 205(b)(4).

Despite this laudable addition to the rules, many providers still will not proceed absent pre-approval by the insurer. The continuing reluctance of providers to treat without ironclad assurance of payment may be the biggest impediment to delivery of medical services in the workers’ compensation system.

F. Consent By Employer/Insurer for Examination or Treatment by a Non-Panel Physician

Despite all of the case law, rules and statutes, the most common method of changing physicians is by agreement with the adjuster. Rarely does one encounter an adjuster who will not adhere to an oral agreement concerning a change of physician.

There are some pitfalls, however. The parties should agree whether the physician is going to be seen for a one-time evaluation or as the treating physician. The adjuster may require that this be the claimant’s IME pursuant to O.C.G.A. § 34-9-202(e) as discussed below.

Some claimant’s attorneys will insist that the parties execute Board form WC-200a documenting that there has been an agreed upon change of physician. This may not be wise, especially if the employee has not yet seen the doctor. One should retain as much flexibility as possible by refraining from entering into any written agreement until one knows the physician’s treatment plan and disability opinion. The best approach to take, if the adjuster is amenable, is to agree that the employee will see the doctor for a one-time evaluation after which the parties can determine whether a change of physician should be made to that doctor.

The employee’s attorney should always request an actual copy of the panel of physicians. Do not let the adjuster recite its contents. Look for ways to invalidate the panel. Call each office listed to verify that the office is still open and the physician listed is still in practice at that location. Inquire as to presence of an orthopedist if an orthopedist is not specifically listed. Determine if there is interlocking ownership or if more than two of the providers are industrial clinics.

The choice of physicians is frequently the most critical part of the case. The attorney who can convince the adjuster that the panel is invalid has gained a tremendous advantage. It can be the difference between the employee receiving quality care that will assist his return to work or being shunted aside by a cynical company doctor, thereby thwarting the remedial purposes of the workers’ compensation scheme.

In the absence of a written agreement, is the insurer bound by an agreement for a change of physician? Fitzpatrick v. General Motors Corp., 172 Ga. App. 515, 323 S.E. 2d 703 (1984) held that an in court stipulation by the employer/insurer agreeing to pay certain medical expenses was binding upon the employer/insurer. In both Brown v. Transamerica IMS, supra, and Lee Fabricators v. Cook, supra, the employer/insurer had acquiesced to the referral to a psychologist from the authorized treating physician and had paid for that psychologist’s services. The court found, apparently under an estoppel theory, that this referred physician became an authorized physician and the employer/insurer had to continue to pay for the psychologist’s services. Although parts of these cases were overruled by statute as described above, this aspect still appears to be valid precedent.

Is acquiescence short of payment sufficient? This becomes a question of fact. In Southeastern Aluminum v. Rayburn, 172 Ga. App. 648, 324 S.E. 2d 194(1984) it was held that in the absence of the panel the permission given to the employee to consult a doctor of his own choosing was sufficient to bind the employer/insurer to pay for that doctor. In Tungler, supra, however, the employee who had prepared the panel of physicians had obtained treatment from a non-panel physician. She argued that the employer/insurer should be liable for these expenses because her supervisor had offered to drive her to the hospital for her back pain. The Court of Appeals found that this was not acquiescence by the employer to see a non-panel physician.

G. Independent Medical Examination

1. IME Arranged by the Employer/Insurer

As long as the employee claims compensation, the employer can have the employee examined by an independent physician. O.C.G.A. § 34-9-202. There is no limit to the number of examinations that can be conducted as long as the employer/insurer abides by the requirements of the statute and Board Rule 202 which requires that the employer/insurer give ten days written notice of the time and place accompanied by travel expenses.

Effective July 1, 1998, Board Rule 202(a) was amended to add “reasonable and necessary testing including Functional Capacity Evaluations” as permissible IME subjects.

2. The Employee’s IME

Effective July 1, 1990, O.C.G.A. § 34-9-202(e) was enacted giving the employee the right to one IME. This could occur only after an accepted compensable injury within 60 days of receipt of any income benefits, at a reasonable time and place within Georgia or within 50 miles of the employee’s residence, be by a duly qualified physician or surgeon and the cost of the examination shall be paid by the employer. The employer/insurer must be notified in writing in advance of the examination, and no diagnostic procedures shall be repeated unless the cost of those procedures in excess of $250.00 is paid by a party other than the employer/insurer.

This right is one to be jealously guarded. It is severely limited because it cannot be used until indemnity benefits are paid. The practitioner, confronted with an unbreakable panel containing unsympathetic physicians and an adjuster who will not authorize other treatment, may find it essential to obtain at least one day of benefits in order to leverage that into the IME. In other situations, adjusters may try to steer the employee to the IME. Because it can only be used once, it should only be used when absolutely necessary.

The practitioner is advised to act quickly. A quality physician will schedule a large block of time in order to adequately complete an IME. It is not uncommon that an appointment cannot be made for 30 days. Many doctors compound the problem by insisting upon pre-payment, which is not a prerequisite of the statute.

VI. THE AMOUNT OF EXPENSES

A. O.C.G.A. § 34-9-205(a)

O.C.G.A. § 34-9-205(a) states “Fees of physicians and charges of hospitals and other services under this chapter shall be subject to the approval of the State Board of Workers’ Compensation.”

B. The Fee Schedule

O.C.G.A. § 34-9-205(b) requires the Board to publish annually “usual, customary, and reasonable charges” for these medical services. This publication is called the “Schedule of Fees for Physicians, Surgeons, Pharmaceutical, Home Health Care and Hospitals for Services Rendered Under the Georgia Workers’ Compensation Law”, commonly known as the “fee schedule”. The latest revision is effective July 1, 1998. Major revisions have been ongoing for quite some time and the Board anticipates publishing the newest version in the near future.

C. Services not listed under the fee schedule

Not all services are listed under the fee schedule. Those that are not are subject to the “reasonable” and “necessary” standard.

D. Peer Review

In the event of a dispute, O.C.G.A. § 34-9-205 provides for a reviewing panel of appropriate peers in order to determine whether the fees submitted were indeed reasonable and the services rendered were necessary. This includes not only non-scheduled items but also those listed on the fee schedule which are only presumed reasonable.

The insurer must file a request for peer review within 60 days of the receipt of the charges pursuant to Board Rule 203(b)(3).

VII. PAYMENT OF MEDICAL EXPENSES

A. When Due
Medical expenses shall be paid within 60 days of receipt of charges pursuant to Board Rule 203(a). Pending before the General Assembly is an amendment to decrease this period to 30 days.

B. Procedure When Disputing Amount of Expenses.

Pursuant to Board Rule 203(a), the employer/insurer may automatically conform charges to the fee schedule, providing at the same time an Explanation of Benefits explaining why the charge has been reduced or disallowed.

C. Procedure When Benefits Are Not Timely Paid

If the employer/insurer has not paid the medical benefits within 60 days nor requested peer review, the employee can either file a motion requesting payment or seek a hearing.

D. Penalty for Late Payment

Board Rule 203(b)(3) allows the Board to assess a penalty up to 20% of the reasonable charges not timely paid.

E. Travel Expenses

Board Rule 203(d) authorizes the payment of reasonable travel costs between the employee’s home and the medical provider, including the pharmacy, allowing 25 cents per mile by private vehicle. This customarily includes parking costs as well. Like other medical expenses, reimbursement for these expenses is due within 60 days.

F. Employee Not to be Billed

No physician or hospital or medical supplier shall bill the employee for authorized medical treatment. O.C.G.A. § 34-9-205(b).

VIII. Conclusion

Because medical expenses constitute such a large percentage of workers’ compensation claims and because the opinion and competency of the authorized treating physician is so essential to the claim, a good understanding of the rights and responsibilities of the parties is essential to the effective representation of the employee or employer in a workers’ compensation claim.


JAMES J. LONG is a partner in Long & Holder, LLP (www.longandholder.com). He was chair of the Atlanta Bar Association, Workers' Compensation Section (1990-1991), and is chair of the Medical-Legal Committee (1999-present). He received his BA in 1970 from Davidson College. He received his Juris Doctor from the University of Florida in 1976. The focus of his practice is workers' compensation claimant's law, including closed head injuries, death cases, and all other cases involving workers' compensation issues. He may be reached at jim@longandholder.com or (404) 523-6100.

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