By: LeRyan Paige Lambert, Senior Counsel, Atlanta
Workers’ compensation benefits are important to protect companies from costly general liability exposure and for workers who genuinely suffer injury or disability. Too often though, either the workers or their representatives exploit this benefit for illegitimate financial gain. Some also strategically create unnecessary litigation costs to create a higher settlement. Even before an injury occurs and immediately thereafter, employers and insurers can take several proactive measures to defeat these efforts and substantially reduce both claim exposure and litigation costs. In Georgia, one of the most effective cost-mitigating tools is to properly and strategically use the panel of physicians to control medical treatment.
An employer must maintain a valid panel of physicians. It must include at least six medical providers who accept workers’ compensation patients. No more than two of the providers can be with an industrial clinic, such as Concentra, Caduceus, and Nova Medical Centers. At least one physician must be an orthopedist. Depending on geographical availability, at least one provider must also be a member of a minority community. All providers must be within reasonable distance from the employer’s place of business and be easily accessible to the claimant. This includes providing all necessary contact information, such as the correct address and phone number. Should the panel omit any of these requirements, a claimant’s attorney will move the State Board to invalidate the panel. This allows them to select any physician of his or her choosing which can make or break a claim. It can often make a difference of tens or even hundreds of thousands of dollars in litigation costs and claim exposure.
Additionally, panel procedure must be followed and should be documented. The law requires that employers and insurers inform each claimant of the purpose and rights of the panel. If an employer/insurer sends a claimant to a doctor without first allowing the claimant to select from the panel, some judges will deem this improper procedure and allow the claimant to openly select his or her choice of physician. Several measures can avoid this common issue. First, an employer should post the panel of physicians in open and obvious locations throughout the place of business. This can include an area where employees often are, such as the lunch room, break room, restrooms, or common hallways or billboards–the more and most obvious places, the better. Second, a rarely utilized but very effective tool is to have all new employees (and longer employees in annual reviews or during regular safety training) acknowledge in writing the existence, locations, purpose, and receipt of the panel of physicians. Third, whenever a claimant is injured, unless emergency treatment is required, an employer should immediately provide the claimant a copy of the panel and then require the claimant sign, date, and circle his or her choice on the panel. Even better, take a photograph of the claimant holding the panel and allow him or her to take a copy home. In emergency situations, this same procedure should be utilized once the emergency resolves. These efforts help protect employers/insurers from costly litigation involving whether proper panel procedure was followed.
Finally, claimants’ attorneys consistently exploit any fault in panel procedure. As such, employers and insurers should regularly confirm that the listed panel physicians continue to treat workers’ compensation patients, all contact information is appropriate, and the minimum number of options remain. A proactive measure against an unexpected default is to list well above the minimum number of physicians so that if multiple cease to be valid options, the panel remains valid. It is also wise to identify the specific doctors and not just general practices on a panel. This assures that conservative medical practices listed do not become liabilities due to hiring a claimant-friendly physician.
In Georgia, a claimant also has a right to change panel physicians one time. To follow proper procedure, if a claimant complains about his or her treating provider or asks for a second opinion, an employer/insurer should instruct that claimant of this right and again, require a signed, dated, and circled panel from the claimant. Additionally, to formalize this change, the employer/insurer MUST, with the permission of the claimant, simultaneously file a WC-200a with the State Board. This filing can be critical to reject an additional physician change thereafter.
Implementing these simple, proactive and documentary measures can save employers and insurers immense amounts in litigation and claim costs and hasten case-closure.