Panel of Physicians in Georgia Workers’ Compensation
By: Sarah Luna
Maintaining control over a claimant’s medical treatment in a workers’ compensation claim can have a significant impact on medical and indemnity exposure. Properly maintaining and utilizing the panel of physicians is one way to help control the overall expense of a case.
To control the physician selection process, the employer must utilize a panel of physicians as statutorily defined in O.C.G.A. § 34-9-201. A posted panel is a list of employer-selected doctors which allows employers to ensure appropriate, reasonable care is provided to their injured employees. As employers are expected to meet all requirements under the statute for a posted panel, this article focuses on the “standard panel” outlined in O.C.G.A. § 34-9-201(b)(1). There are three elements an employer must satisfy for panel compliance: (1) composition; (2) posting; and (3) utilization.
The first element that an employer must satisfy is the correct composition of a panel. A panel must include at least six physicians or professional associations or corporations of physicians who are reasonably accessible to the employees, with at least one orthopedic surgeon, and not more than two industrial clinics. A panel must also include a “minority” physician, who may be in an industrial clinic or one of the other physicians chosen for the panel. “Minority” is defined as a group which has been subjected to prejudice based on race, color, sex, handicap or national origin. We recommend against including an emergency room or hospital on the panel. While that may be the first place an employee is treated for a work injury, hospitals are not generally a place where an injured worker would obtain regular follow up treatment and may open an employer/insurer to treatment with an undesired doctor. An employee or his attorney could argue they are entitled to treat with any doctor who has privileges at the listed hospital. Due to the nature of work injuries, panels should include more orthopedic physicians when possible.
Panels should be reviewed periodically to ensure their validity, as physicians may move offices, stop accepting workers’ compensation, retire or even die, any of which could invalidate the panel. Additionally, to avoid potential pitfalls, we recommend including more than the minimum six doctors on the panel, if at all possible, thereby ensuring the invalidation of one doctor will not invalidate the panel in its entirety.
The second element of panel compliance concerns the posting of the panel. The panel of physicians (or in some cases, the Managed Care Organization, commonly referred to as an “MCO Panel”) must be posted in a prominent place, such as a break room or near where employees clock in to work.
As confirmed in Lilienthal v. JLK, Inc., the panel of physicians must be in a “prominent” location on the business’ premise. 367 Ga. App. 721, 888 S.Ed.2d 310 (2023). In the foregoing case, the court of appeals looked at the ordinary, logical and common meaning of “prominent” and found it must be “readily noticeable; conspicuous” or “immediately noticeable” and “situated so as to catch the attention” as it relates to the posted panels. The court of appeals determined the administrative law judge (ALJ) did not properly address whether the panel was in a “prominent” location (existing in a locked resource room with limited access) under O.C.G.A. § 34-9-201(c). While the ALJ found the panel to be “accessible,” the case was ultimately remanded back to the ALJ with instruction from the Board to consider whether the panel was also located in a prominent location.
Under Board Rule 201(a)(1)(iii), the Board also allows posting the panel of physicians electronically in addition to being posted on the business premises. However, this rule does not eliminate the requirement to post the panel in a prominent location on the business premise but can act as an additional safeguard. This is useful in cases where employees may not return to work after an alleged accident or in today’s new era where employees work remotely.
The final element to consider when it comes to panel compliance is utilization. Under O.C.G.A. § 34-9-201(c), an employer must take all reasonable measures to ensure employees understand the function of the panel, understand their right to select a physician from the panel and are provided assistance in contacting panel physicians. To maintain control of medical care, the employer must train employees on the posted panel of physicians. When a new employee is hired, they need to be told what to do if they are injured on the job. They should be instructed to tell their supervisor immediately if they are injured and they should be shown where the panel of physicians is posted. They should be told their rights under the statute regarding the selection of a physician from the panel and of their right to make a second choice from the panel. Ideally, these will include written policies and procedures in the employee handbook.
Though many employers review the panel’s existence and purpose as part of their standard orientation, after an injury, the employee may state they were never given an opportunity to select a physician, they never saw a panel posted on the employer’s premises or they were forced to go to the “company doctor.” To rebut these arguments, employers should have employees sign a statement as part of the orientation process indicating they have been instructed on what to do if they were injured on the job, instructed on the purpose and function of the panel and know where the panel is located. Employers may also document employee files by taking pictures of the employee standing next to the posted panel of physicians. Further, after an injury is claimed, an employer may make a copy of the panel, have the employee circle their choice of physician, sign it and date it. The copy should be maintained in the employee’s file to demonstrate the panel was reviewed with them again at the time of an injury. If the employee makes a request for a second physician as part of their statutory right to a one-time change in panel physicians, this process should be completed again.
As of July 2023, the State Board of Workers’ Compensation issued a new panel of physicians form for employers. While the law itself has not changed regarding the requirements of the panel, the new form provides a clearer and easier-to-read format. It also includes additional information pertaining to the physicians and practice groups listed, such as a recommendation to list the physicians’ websites for easier accessibility. Use of an old panel form does not render the panel itself invalid, so long as it satisfies the requirements detailed above. However, when updating your panel, please ensure you use the most recent form made available by the State Board.
If an employer fails to follow the law insofar as panel compliance, an employee may select any physician to render service at the expense of the employer. This can have a major impact on claim exposure. Therefore, adherence to the above legal requirements will greatly reduce your exposure in Georgia workers’ compensation claims.
Attorney Contact Info
Sarah Luna
sarah.luna@swiftcurrie.com
404.888.6232