Georgia’s Posted Panel Changes

By: Ryan Lawson, Associate, Atlanta

On July 1, 2015, several legislative changes went into effect which slightly amended the workers’ compensation rules and statutes. Among these changes was an increase in the Temporary Total Disability and Temporary Partial Disability rates from $525.00/$350.00 to $550.00/$367.50, respectively; an increase to maximum death benefits to the surviving spouse from $150,000.00 to $220,000.00; an extension to the reimbursement period for insurers instituting claims under the Subsequent Injury Trust Fund from 2020 to 2023, although the accident in question must still have occurred prior to June 30, 2006; and, several important amendments to the posted panel requirements under O.C.G.A. § 34-9-201 which form the basis of this update.

Prior to the legislative changes of July 1, 2015, there were three specific ways in which the employer could satisfy the posted panel of physicians requirement. First, the employer could have used a conformed panel of physicians; second, the employer could have used a traditional posted panel of physicians; and third, the employer could contract with a certified managed care organization pursuant to O.C.G.A. § 34-9-208 and Board Rule 208. The conformed panel differed only slightly from the traditional posted panel in that it required ten doctors or medical practitioners instead of six, but could contain general surgeons and chiropractors to help reach that figure. Both panels required that the physicians be from non-affiliated practices to be counted, and both contained the same provisions with respect to requiring at least one minority physician, at least one orthopedic surgeon, and a limitation on the number of industrial clinics (two).

As of July 1, 2015, the “conformed panel” has been removed and is no longer an option for employers to satisfy their obligations under O.C.G.A. § 34-9-201. Because chiropractors and general surgeons were only specifically allowed under the conformed panel architecture, and not mentioned under the provisions for the traditional “posted panel,” it can be reasoned that neither of these groups are valid members of the posted panel going forward, and should be removed from any outstanding panels.

Another interesting and important change is that the requirement that all physicians come from separate practices has been removed. It is not clear whether this was just an inadvertent legislative mistake which occurred when the entire text of O.C.G.A. § 34-9-201(b)(2) was stricken, or whether it was a calculated change. Either way, until such time as revisions to the law are made, posted panels may not be invalidated because there are not at least six physicians from different practices. Hypothetically, this would allow the placement of a single orthopedic practice that contained at least one minority practitioner and 6 total doctors to singularly satisfy the posted panel requirements. While I do not recommend taking this approach, it serves as a good illustration as to the additional firepower we now have when faced with defending a posted panel.

Litigation over posted panels is frustratingly common as claimants try to find creative ways to select their own doctors. The new changes to the posted panel requirements mean that claimant’s attorneys now have one fewer method of invalidating a posted panel, and you should feel more confident in defending your posted panel going forward.