Does a Clerical Error Invalidate the Posted Panel?

Written by: Peter Skaily, Esq.

One of the most important aspects of any workers’ compensation claim is control of medical treatment. The employer/insurer will want the claimant to treat with a provider from the panel of physicians. On the other hand, the claimant will want to treat with an off-panel, claimant-friendly physician. A common way for the claimant to argue entitlement to treatment with an off-panel, claimant-friendly physician is to argue that the panel of physicians is invalid.

Under O.C.G.A. § 34-9-201(b)(1), the employer/insurer can restrict the claimant to treatment with a provider from the panel of physicians by “maintaining a list of at least six physicians or professional associations or corporations of physicians who are reasonably accessible to the employees,” of which, at least one doctor must practice the specialty of orthopedic surgery, and not more than two industrial clinics shall be included. O.C.G.A. § 34-9-201(b)(1). “[I]f the employer fails to provide any of the procedures for selection of physicians as set forth in  … this Code section, an employee may select any physician to render service at the expense of the employer.” O.C.G.A. § 34-9-201(f).

One tactic popular with claimants’ counsels is to find a clerical error in the physician’s name, address, and/or telephone number listed on the panel of physicians and argue that the erroneous entry invalidates the panel. While certain circumstances can invalidate a panel, it is important for an employer/insurer to realize that a simple clerical error does not automatically invalidate a panel of physicians.

Wrong Address: In 2013, a claimant’s counsel alleged that a panel of physicians was invalid because an orthopedist’s address was listed as a clinic, as opposed to the physician’s primary office. (Trial 2013-007884). Thus, the claimant’s counsel argued the panel of physicians had three industrial clinics and was invalid. Furthermore, the claimant’s counsel alleged the orthopedist was no longer practicing at the clinic as of the day of the claimant’s accident. The employer/insurer conceded that the orthopedist was listed at the clinic on the panel of physicians, but they argued that the orthopedist was listed in his individual capacity. However, the employer/insurer conceded that the orthopedist was no longer practicing at the orthopedic clinic on the day of the claimant’s accident, but they argued that the orthopedist could be reached by telephone because the clinic would forward telephone calls to the orthopedist’s new office. The ALJ found the panel of physicians was invalid and that the employer/insurer refused the claimant reasonable access to medical treatment.

However, the Appellate Division overturned this decision, reasoning that the claimant was never denied access to the orthopedist. (Appeal 2013-007884). The Appellate Division noted, “nothing in the Code or the Board Rules states that a mistaken address will invalidate an otherwise valid panel of physicians.” The Appellate Division continued to explain that this single clerical error did not warrant the employer/insurer’s losing control of the claimant’s medical treatment because the claimant was provided with reasonable access to the orthopedist.

Wrong Telephone Number: In 2012, a claimant’s counsel argued that a panel of physicians was invalid because the same phone number accidently was listed for two separate medical providers. (Trial 2012-017109). During the hearing, the claimant argued that the phone number listed for the two providers was not the correct phone number for either provider. It was undeniable that at least one provider had an incorrect telephone number listed on the panel of physicians. The ALJ found that the panel of physicians was invalid.

The Appellate Division overturned the ALJ’s decision. (Appeal 2012-017109). The Appellate Division explained that the claimant received medical treatment from one of the medical providers on the panel of physicians with the allegedly incorrect telephone number. Thus, there was no evidence that the claimant was unable to access the other provider on the panel of physicians with the same telephone number as the provider from which the claimant already received medical treatment. Furthermore, the evidence showed that the claimant never actually sought a change of physician, and, thus, the Claimant was not denied reasonable access to the medical provider. Thus, the Appellate Division denied the claimant’s request to select a physician not on the panel.

Retired Physician: In 2014, a claimant’s counsel argued that a panel of physicians was invalid because the physician treating the claimant retired during the treatment. (Trial 2014-026668). In effect, one of the medical providers on the panel of physicians was no longer practicing, and, thus, the panel of physicians was invalid, according to the claimant’s counsel. The ALJ did not invalidate the panel of physicians. Instead, the ALJ ordered the claimant to select a physician from the employer/insurer’s updated panel of physicians if the claimant wanted to use the change of physician. In essence, the ALJ honored the panel of physician’s validity at the time of the accident.

In conclusion, a simple clerical error does not necessarily invalidate a panel of physicians. Nonetheless, employer/insurers are best served by maintaining an updated panel of physicians with more than six medical providers. If there are seven (7) providers listed, removing one provider due to incorrect contact information, retirement or any other reason, will not invalidate the panel. However, should a claimant’s counsel allege a panel of physicians is invalid, these cases show that every case is a fact-intensive inquiry that deserves scrutiny before a decision is made by the employer/insurer regarding the validity of a panel and, ultimately, the control of the claimant’s medical treatment.