Essentially, attorneys may call the Board and request a conference call with the presiding administrative law judge (ALJ) assigned to the claim.  If there is no ALJ assigned to the case, the State Board of Workers’ Compensation will assign a case accordingly.  These ALJ’s are empowered to address the resolution of medical issues or other claims that have NOT been “controverted” by the Employer/Insurer.  The primary purpose of this vehicle is to reach an answer without an evidentiary hearing.  The Board has included issues such as problems obtaining medication prescribed by the authorized treating physician; payment of unpaid medical bills; or accidental suspension of benefits.  The Board also indicated that this conference call vehicle should NOT be used for change of physician requests or other issues where the submission of evidence is required.

If one party requests the conference call, the other party’s participation is mandatory unless otherwise excused by the presiding judge.  Once the conference call is scheduled and the parties are notified via email to initiate the call, failure to participate may result in monetary penalties.  The Board requires 24-hour prior notice and a valid reason to avoid potential sanctions.  The workers’ compensation board “encourages” all parties to work together with the judge’s calendar.

It is the Ramos Law Firm’s hope that this new vehicle will assist injured workers’ in securing prompt medical treatment or resolution of a pending issue in his or her workers’ compensation claim.

Recently, OSHA recommended a fine for an Augusta-based paper mill, International Paper, after an accident that killed a worker earlier this year. The Atlanta Business Chronicle reported that OSHA handed down 37 citations and proposed more than $120,000 in fines against this Employer.

The OSHA violation came after a worker was hit and killed by a timber loading crane in February. It was reported that this injured worker was an employee for approximately 43 years. OSHA says the company was running the crane without any kind of warning device.

In most cases, the Employer may have a list of medical doctors from which the injured workers may obtain treatment.  These doctors may consist of occupational, orthopedic, or neurological specialists.  The Employer has the burden of having this list of doctors posted in a prominent place.  The Employee has the choice of selecting any doctor on this panel.  Also, the injured worker may also change or switch doctors one time without the Employer’s permission.

The income benefits are determined by averaging the injured employee’s weekly wages from the previous 13 weeks and taking 2/3rds of it. Moreover, the 2/3rds of this average weekly wage is capped depending on the date of the accident or injury. This is called the workers’ compensation rate.  If the injured employee is not making the maximum workers’ compensation rate, the Employer/Insurer is required to outline their calculations for the State Board.  It is important to scrutinize these numbers to ensure proper payment.

These workers’ compensation benefits should be started in a timely fashion as outlined by the law.  If you have been injured on the job and would like to discuss your claim, please contact the Ramos Law Firm for a free consulation with an expert in the field.

When the Employer/Insurer “controverts” or determines a workers’ compensation claim is not compensable, the Employer/Insurer will not pay for the injured Employee’s medical treatment. Consequently, the injured Employee will be responsible for finding a physician to treat with and for payment of his or her medical bills.  This determination does not necessarily mean the injured workers’ claim has ended.  It is merely the position the Employer/Insurer has taken.  It will be the claimant’s burden to prove that the Employer/Insurer is wrong. From a practical perspective, the Employee has the daunting task of locating a qualified physician to continue treatment.

When a claim is controverted, the Employee may choose to treat with a physician of his or her choice, pursuant to Board Rule 201(b).  This Board Rule  states that “the Employer/Insurer cannot restrict treatment of the Employee to the panel of physicians, conformed panel of physicians, or WC/MCO when the claim has been controverted.” Therefore, the Employee is free to choose his or her authorized treating physician.

Although an injured Employee has greater control of his or her medical treatment when a claim is controverted, the Employee is still left with the challenge of paying for medical treatment.  Since the cost for medical treatment will escalate within a short period of time, an Employee must consider alternatives to paying for medical treatment either out of pocket or through another insurance carrier.  An attractive alternative for Employees is to identify a physician who will provide medical treatment on a ”lien basis”.  Treating on a lien basis means the Employee will not pay for medical treatment or services at the time the treatment is rendered, but will pay for the treatment at the time his or her claim settles.

A physician or medical facility which offers medical treatment on a lien basis to workers’ compensation patients will protect their interests by requiring that the Employee and his or her attorney sign a ”letter of protection.”  A letter of protection is a contract between the patient, attorney and medical provider, which ensures the attorney will pay all medical bills for treatment rendered on a lien basis from the Employee’s settlement funds.

Seeking treatment on a lien basis is not the ideal for most Employees and attorneys, but it is a workable alternative for the injured Employee who cannot afford the immediate out-of-pocket cost.

If your workers’ compensation claim is controverted, please contact the Ramos Law Firm to discuss seeking treatment for your work injuries.

In a Georgia workers’ compensation claim, an employee’s personal health information can be used by the employer/insurer to assess the compensability of a claim.   Medical records are of interest to the employer/insurer because these records reveal whether an injured worker has previous injuries to the body part injured in the work accident at issue or pre-existing conditions (such as diabetes or high blood pressure).  It is critical to investigate previous injuries because the employer/insurer may not be liable for payment of medical treatment for an injury which occurred before the accident at issue and/or did not occur in the course and scope of the employee’s employment.  Additionally, if an injured worker is a diabetic or suffers from high blood pressure, these pre-existing conditions can slow down an injured worker’s recuperation or cause complications in healing.

For example, if an injured worker sustains a broken ankle and is also suffering from type 2 diabetes, but is non-compliant with her diabetes treatment plan, he or she may experience delays in her recuperation due to poor circulation or possible nerve damage in the lower extremities.  In the aforementioned example, the repercussion of non-compliance with her diabetes treatment plan can lead to serious complications, which may prevent the employee from returning to work and may sever the employer/insurer’s liability for continued medical treatment for the broken ankle.  The employer/insurer will point to this fact to deny future benefits.  Obviously, this will be a medical question for the administrative law judge.

The medical records are also a tool the employer/insurer can utilize to gather information about injured worker’s conversations with his or her medical providers.  Ordinarily, a patient’s conversation with his or her physician is confidential, however, when an injured worker files a workers’ compensation claim and seeks medical treatment for work-related injuries, the patient-physician conversations are no longer considered confidential.

Pursuant to O.C.G.A § 34-9-207, when an employee files a workers’ compensation claim, the employee waives

“…any privilege or confidentiality concerning any communications related to the claim or history or treatment of injury arising from the incident that the employee has had with any physician… .”

Employees should not be discouraged from filing a claim due to privacy concerns. The release of workers’ compensation information to non-parties is generally prohibited under the workers’ compensation code.  Employees must keep in mind that in order to receive the best medical care, the doctors must have access to his or her medical history to create an effective treatment plan.  The mutual goal of all parties is to return the injured worker back to normal duty if possible.  However, it is important to realize that this may never happen depending on the severity of the injury.  If the goal of “normal duty work status” is not reachable, then the injured worker should still strive to reach maximum medical improvement.

O.C.G.A. § 34-9-201(b)(1) provides:

The physician selected under this subsection from the panel may arrange for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require without prior authorization from the Board; provided, however, that any medical practitioner providing services as arranged by a primary authorized treating physician under this subsection shall not be permitted to arrange for any additional referrals.

As the statute clearly reads, an authorized treating physician can make a referral for specialized care to any other physician.  This is not limited to the posted panel of physicians.  The only limitation is that the physician to whom the injured worker is referred may not then make another referral.  Rather, that physician must consult with the authorized treating physician for any further referrals.

The question then arises – can the employer refuse to authorize treatment from a physician who is referred by the authorized treating physician?  The short answer is generally not.  Should the employer fail to authorize treatment from the referred physician, that would certainly draw a hearing request from the claimant’s attorney.  The employer, then, would have the burden of showing that the treatment was not necessary.  Presumably, this would require opinions of other physicians to combat the referral.  Absent any such evidence, it would likely be deemed unreasonable for the employer to refuse to authorize such treatment thereby subjecting themselves to assessments of attorney’s fees.

According to Board Rule 104, once you have received a light duty release from your authorized treating physician, the employer may, within 60 days of the light duty release, file a form WC-104.  This form allows the employer to reduce your benefits from Temporary Total Disability  (TTD) payments to Temporary Partial Disability (TPD) payments after 52 consecutive weeks of light duty release or 78 aggregate weeks of light duty release.  This form must be accompanied by the medical records placing the claimant at light duty.  It may be filed without regard to whether the employer has any light duty work available for the claimant.

There is no actual requirement that the WC-104 be filed with the State Board at the time it is sent to the claimant.  Rather, it only must be filed once the prescribed number of weeks of light duty have been reached and the employer seeks to reduce benefits from TTD to TPD.

Upon receipt of a WC-104, the claimant should immediately look at the date on the medical record, the date on the WC-104 and the date on the envelope.  If the WC-104 was not sent within 60 days of the light duty release, it is invalid. The claimant should also pay greater attention to reports from their doctors after receiving a WC-104.  Remember, if the claimant is placed back on total disability by the authorized treating physician within the 52 weeks following the light duty release, the employer may not reduce benefits until the 78 aggregate weeks have been reached.

For example, employee gets injured on the job.  She reports her injury to her employer.  Employee seeks treatment with Dr. X who is an authorized physician.  After treating with the doctor a handful of times, he recommends a test that he cannot perform.  It is recommended that the employee treat with Dr. Y in order to obtain the proper treatment which will help the employee return to work.  Dr. X files a WC-205 on December 1, 2008 to request the treatment.  Unfortunately, the employer does not respond to the WC-205.  Can the employee go ahead and treat with Dr. Y or must the employee wait for her employer to give her the authorization?

Since Dr. X was a valid referring physician and was authorized to treat the employee, the employer’s failure to reply to the WC-205 in five business days is a violation of Board Rules and justifies the imposition of a civil penalty under O.C.G.A. § 34-9-18/ Board Rule 205. It would be likely that an ALJ would impose a penalty between $100 and $1000 against the employer for not timely responding to the WC-205.  Failure to timely respond to a WC-205 causes an unfair delay when the employee is waiting for medical treatment.

One more note, if the employee went ahead and treated with Dr. Y after the 5 days passed but before the employer responded to the WC-205, the employer would be responsible for the medical expenses related to the treatment/test of Dr. Y.  Pursuant to Board Rule 205, medical treatments/tests that are prescribed by an authorized treating physician shall be paid if the treatment is related to the on-the-job injury and likely to restore the employee.

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 later.