Signs, signs EVERYWHERE

Written by: Lauren Dimitri, Esq.

Signs are everywhere! In your office building (“Wet Floor”), on the sidewalk as you walk to lunch (“Sidewalk Closed”) or on the highway as you drive to work (“One Call, That’s All”). Signs are often hard to ignore because they are always in your face. However, what happens if you miss a sign? Or, what happens if you are looking for specific information on a sign and it is missing or incorrectly listed? Well, if your sense of direction is like mine, you may be embarrassed to comment. Of course, that’s not what I mean though. What I’m asking is: what if one of your required postings contains errors or has missing information?

We occasionally encounter difficulties with claimant’s attorneys seeking to invalidate an employer’s panel of physicians on minor technicalities, such as out of date or incorrect phone numbers and addresses. In two fairly recent cases, claimants made these very challenges.

In the first case, an employee challenged the employer’s posted panel on the basis that there were more than two industrial clinics listed and on the basis that one of the doctor’s addresses was incorrect. As a result, the employee demanded treatment from the doctor of his choosing and, further, demanded an award for attorney’s fees for violation of O.C.G.A. § 34-9-108(b)(1) – you may recall that this is the statute that allows the ALJ to award attorney’s fees against a party who brings, prosecutes or defends an action “without reasonable grounds.” Surprisingly, the ALJ found in the employee’s favor and held that “by posting the incorrect address . . . the employer failed to provide the employee with reasonable access to the physician.” Moreover, the ALJ awarded the employee $2,000 in attorney’s fees because she found that the employer’s defense of the validity of the panel was “unreasonable” in violation of O.C.G.A. § 34-9-108(b)(1).

Luckily, the State Board’s appellate division reversed the ALJ’s decision, finding that there was no evidence to support that the employee was denied reasonable access to the doctor whose address was incorrectly listed or to any other panel provider. Importantly, the decision noted that there is nothing in the Code or the Board Rules stating that a mistaken address will invalidate an otherwise valid panel of physicians. The opinion suggests, however, that if there was evidence of an incorrect address, plus facts suggesting that the employee was denied reasonable access to the doctor whose address was incorrectly listed, then this may have been a different case.

In the second case, the ALJ found that the employer’s posted panel was “flawed” due to a duplicate telephone number appearing on the face of the panel. As a result, the ALJ held that the employee could treat with the doctor of his choosing. Once again, the State Board’s appellate division had to step in and correct a ruling on an issue that could have been avoided if the employer only had in place a system of checking the panel on an occasional basis. Critical to the Judge was that there was no persuasive direct evidence establishing whether one or both medical providers had an incorrect number listed on the panel. And, identical to the first case, there was no evidence suggesting that the employee was denied reasonable access to the panel provider he chose.

Given the recent rise in these types of claims, take heed in this cautionary tale. If either of the employers involved in the two cases discussed would have taken a moment to review their posted panels, then they would have avoided unnecessary, timely and costly litigation. You might be surprised how often claimants make these seemingly “silly” challenges. The moral of the story? Take a moment and check your signs. You won’t be sorry that you did!