Prominence vs. Accessibility in Posting Panels in Georgia
The Georgia Court of Appeals recently handed down a claimant-friendly decision (Lilienthal v. JLK, Inc.) regarding how and where the required Panel of Physicians is to be posted.
Under OCGA 34-9-200(a), an employer is required to furnish an injured worker with reasonably required medical treatment. OCGA 34-9-201(b)(1) satisfies that requirement by allowing the employer to maintain a list of at least six physicians with whom an injured employee may seek treatment. Under OCGA 34-9-201(c), an employer is required to post this Panel of Physicians “in prominent places upon the business premises.” The employer is also required to take reasonable measures to ensure that employees understand the panel and that assistance is given in contacting a panel physician.
If the employer fails to comply with these requirements, the employee may seek treatment with a provider of their choice at the expense of the employer.
In Lilienthal, the claimant was a preschool teacher who slipped and fell, injuring her left shoulder and both knees. When she asked to see a doctor, the claimant was provided a photocopied Panel of Physicians, and the director of the preschool made an appointment for her at the Panel provider closest to her house, though the claimant testified she was unaware she had the right to say she did not want to see that doctor. After some initial treatment, the claimant sought an independent examination with a knee specialist of her own choosing, who recommended a total knee replacement surgery.
The claimant sought a change of physician to the non-Panel knee doctor who had recommended surgery. Obviously, if she succeeded – which she eventually did – the exposure to the employer increases significantly, given the loss of the ability to control the claimant’s medical treatment.
A hearing was held over this issue in 2021, and the Administrative Law Judge denied her request for a change of physicians. This was affirmed by the Appellate Division of the Board. The Claimant appealed to the Georgia Court of Appeals who reversed and remanded in the claimant’s favor. The issue upon which the decision turned was whether the Panel of Physicians was prominently posted upon the work site’s premises. The Court of Appeals found that the lower courts had erred as a matter of law in finding that the Panel was accessible, instead of finding that its posting was not prominent.
Accessibility & Prominence
The facts regarding the Panel’s posting were these: During the claimant’s new hire orientation, she signed a “manual acknowledgement form” stating where the panel was located, though the ALJ found that the manual did not clearly explain its location. The claimant testified no one ever showed her where it located was during an orientation. In reality, it was posted inside the school’s Resource Room, an art supply closet in the main corridor. The Resource Room was to remain locked when not in use due to equipment dangerous to children, and the only key was located in a metal box inside a closed drawer of a desk used by school administration. The upper half of the door to the Resource Room was a glass window, and there was conflicting testimony about whether lights in the room were left on when the room was not in use. The claimant testified that she rarely used this Resource Room.
There was an employee lunchroom where the Panel might have been posted. The trial court noted that simply because the Panel was not posted in the “best” place did not mean that the location where it was posted was inadequate. As the lower courts found, the claimant did have the ability to access the Panel. However, as the Court of Appeals noted in its reversal, accessibility is simply not the standard. Prominence is.
The Court started its analysis by pointing to dictionary definitions of prominent: “immediately noticeable” and “situated so as to catch attention.” The Court held that “the panel of physicians was not easily seen by most employees working upon the premises. In order to access the panel of physicians, an employee would have to go to the front office, find a key to the Resource Room in a locked box in the drawer of another employee’s desk, turn on the lights, and enter the locked storage room.” The case was remanded so that the lower courts could decide the case upon the prominence standard.
On the one hand, it is easy to understand that you shouldn’t post your Panel in a locked closet. But on the other hand, this case is somewhat disturbing given that the claimant signed an acknowledgement form at orientation regarding the Panel and that she was apparently provided a copy of the Panel right after she was injured. This case stands as a warning that you cannot relax your guard about how your Panel is actually posted, even if you are otherwise timely giving a copy to your injured worker.
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About the Author
Atlanta Associate Daniel Richardson focuses on a variety of workers’ compensation matters. He defends employers, self-insurers and insurance companies throughout Georgia on a variety of workers’ compensation claims, and aims to bring all matters to a swift resolution in a cost-effective way.