Recent Appellate Division Decisions – Panel of Physicians

Every year at the Workers’ Compensation seminar, there is a discussion of recent Appellate Division decisions.  Although they are not binding precedent, there is often a great deal of guidance to be gleaned from these discussions.  One recent decision from the Appellate Division was with regard to the employer’s duty to maintain a posted panel of physicians. As discussed at length in a previous blog, the employer has a duty to maintain a list of at least six physicians.  There are guidelines as to the makeup of the panel as well. The employer is then required to take reasonable measures to make sure that the employees understand their rights in terms of selecting a panel physician.  Failure to do so will result in the employee having the right to treat with any physician of her choosing. In the case decided by the Appellate Division, an employer did not advise an injured employee of her right to choose her own physician from the panel until four days after the accident.  Prior to the accident, the employee had never been shown the panel, nor had it explained to her that she had the right to choose any doctor from the panel in the event of a work injury. The Appellate Division therefore held that based upon the omissions of the employer, the employee was entitled to choose any physician to treat her at the employer’s expense. This decision reinforces the fact that employees should take the time to be aware of their rights.  Conversely, employers should take the time to properly inform their employees about their rights under O.C.G.A. 34-9-201 to...

Failure to Comply with Rules May Result in Employee’s Choice of Any Physician

Board Rule 202(c) provides in pertinent part that when an employer fails to properly provide the procedures for selection of physicians, the employee is authorized to select a physician who is not listed on the employer’s panel of physicians. That physician so selected becomes the authorized treating physician, and the employee may make one change from that physician to another physician without approval of the employer and without an order of the board. The Appellate Division recently adopted similar findings when an ALJ granted an injured employee’s Change of Physician twice due to the employer’s failure to explain the employee’s rights in seeking medical treatment prior to treating with Concentra which was not her chosen medical provider. The employee treated with Concentra approximately 13 times before requesting her first Change of Physician from Concentra to a specific physician. Approximately a month later, the employee requested a second Change of Physician. The employer objected to the second Change of Physician. It argued that Concentra was the original authorized treating physician and the employee had exhausted her one free chance under the Act. The Appellate Court found that since the employee was never explained her rights she was entitled to the original change from Concentra and to her second change a month...

If Injured on My Way to Work, Can I File a Workers’ Comp Claim?

An injury that occurs on the employer’s premises is usually considered to arise in the course of employment. When an employee is injured on the employer’s premises or property controlled and/or maintained by the employer on their way to or from work, the accident is considered to have occurred in the course of employment. The location of where an injury occurs has no bearing on how the claim is processed, as long as it occurs on the employer’s premises. When an injury occurs on public property which is not controlled, owned or maintained by the employer, the injury is deemed to not arise in the course of employment and therefore, is not compensable. However, the employee may have a third-party tort claim against another entity. Obviously, this analysis is very fact specific. If you would like to discuss this topic and whether you may be entitled to workers’ compensation benefits, please contact Adriana Sola...

Am I Considered an Employee for Purposes of Seeking Benefits?

Outside the field of workers’ compensation, people will loosely refer to an individual as an employee or independent contractor. However, in the field of workers’ compensation these titles are not interchangeable as the Georgia Workers’ Compensation Act distinguishes “employees” from “independent contractors.” An employee is covered by the Georgia Workers’ Compensation Act, whereas, an independent contractor is not. The Georgia Workers’ Compensation Act has outlined criteria to determine whether an individual is an independent contractor, and is therefore, barred from receipt of workers’ compensation benefits. O.C.G.A. § 34-9-2 outlines criteria used to determine whether an individual qualifies as an independent contractor. An independent contractor is an individual who meets the following criteria: 1. An individual who has entered into a written or implied contract which creates an independent contractor relationship; 2. Exercises control over the time, manner and method of the work to be performed; 3. Is paid per unit of work or contract as opposed to a salary or hourly basis; If an individual does not meet all of the above-referenced criteria he/she shall be considered an employee, unless an administrative law judge finds otherwise. Obviously, whether or not you are an independent contractor is very fact specific. If you would like to discuss this topic and whether you may be entitled to workers’ compensation benefits, please contact...

The SCHIP Extension Act – Changing How Insurers Do Business

Workers’ compensation insurers will have to change the way they do business, starting July 1, 2009. On this date, the SCHIP Extension Act of 2007 will take effect, forcing liability insurers, self-insurers, no-fault insurers, and workers’ compensation insurers to report newly required information to the Centers for Medicare and Medicaid Services (CMS). CMS is the federal administrative agency responsible for administering Medicare and Medicaid. The mandates will require insurers to determine Medicare status for all claimants; and report all claims involving a Medicare beneficiary to CMS when those claims are resolved. This is a departure from the current law set forth in the Medicare Secondary Payer Act of 1980 (MSPA) which makes reporting voluntary. Congress enacted the MSPA to mitigate and recoup the benefit payments CMS was paying to beneficiaries involved in work related accidents. The Act requires insurers to be the primary payers of medical costs arising from work related injuries and says that Medicare benefits can only be used as a secondary source of payment. MSPA mandates that during the settlement of a workers’ compensation claim insurers consider CMS’s interests. SCHIP works to extend the principals of the MSPA. When SCHIP takes effect insurers will be required to gather the injured person’s personal information, such as, full name, address, date of birth, gender, social security number, and health insurance claim number. In addition, insurers will need to provide CMS with insurance type information, the name and address of the insurance carrier, the policy number, claim number, and policy limits. CMS is currently developing the Coordination of Benefits Secure Website (COBSW) so insurers can submit this data electronically....