Panel of Physicians in Georgia Workers’ Compensation 

25 Jun, 2024 Sarah Luna

                               

By Sarah Luna 

Medical expenses are often the largest component of a Georgia workers’ compensation claim. Losing control of the medical expenses can accordingly result in an injured employee receiving an extended period of temporary total disability benefits. Properly maintaining and utilizing the Panel of Physicians is one way to help control the overall expense of the case. 

In order to maintain control of medical treatment, the employer must utilize a Posted Panel of Physicians, statutorily defined in O.C.G.A. § 34-9-201. A Posted Panel is a list of employer-selected doctors which allows employers to insure appropriate, reasonable care is provided to their injured employees. This article will focus on the most common form of a panel, 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: composition, posting and utilization. 

First, an employer must satisfy the correct composition of a panel. This means a panel must include at least six physicians, 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 be 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. Usually, 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.  Specifically, an employee or his or her attorney could argue they are entitled to treat with any doctor who has privileges at the listed hospital. Due to the general nature of work injuries, panels should include more orthopedic physicians when possible.   

Next, 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.  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 and the employee’s right to select a physician from the panel. They also must be provided assistance in contacting panel physicians. If an employer fails to provide any of the statutory requirements for selection of physicians, the panel is deemed invalid and an employee may select any physician to render service at the expense of the employer. Panels should be reviewed at least annually to determine 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 these 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. 

Pursuant to the statute and 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 Lilienthal, the court 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 in this specific claim 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.  

Additionally, 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. Please note, this rule does not eliminate the requirement to post the panel in a prominent location on the business premises but can act as an additional safeguard. This is useful in cases wherein employees may not return to work after an alleged accident or in today’s new era of working remotely.  

Finally, to maintain control of medical care, the employer must educate the 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 directed to tell their supervisor immediately if they are injured, and where the Panel of Physicians is posted. They should be told their rights under the statute regarding their ability to choose a physician from the panel and of their right to make a second choice of doctors from the panel. Ideally, this could be accomplished by including written work injury 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, that 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 off on a statement as part of the orientation process indicating they have been instructed on what to do if they are  injured on the job, have been instructed on the purpose and function of the panel and know where the panel is located. Employers may also document their employee’s files by taking pictures of the employee standing next to the Posted Panel of Physicians. Further, 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. Then, 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 may be completed again.  

As of July 2023, the State Board of Workers’ Compensation issued a new form for employers to use as its Panel of Physicians. While the law itself has not changed regarding the requirements of the panel, this 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’ online 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, employers should use the most recent form made available by the state board. 

Adherence to the statutory requirements listed above can help greatly reduce employers' exposure to Georgia workers’ compensation claims, as the Panel of Physicians represents the employer/insurer’s best attempt to have the best doctors available for their workforce.  

Sarah Luna is an associate attorney at Swift Currie in Atlanta, Georgia. She focuses her practice on defending employers and insurance companies in workers' compensation claims throughout the state. She can reached at sarah.luna@swiftcurrie.com.   


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