2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 6 - Payment of Compensation
Part 1 - Medical Attention
§ 34-9-2.1. Exemption of Corporate Officers; Limitation

1. A corporate officer or a member of a limited liability company who elects to be exempt from coverage under this chapter shall make such election by giving written certification to the insurer or, if there is no insurer, to the State Board of Workers' Compensation. The right of any corporation or limited liability company to exempt its officers or members from coverage under this chapter is limited as follows:
   1. A corporation shall not be allowed to exempt more than five corporate officers and a limited liability company shall not be allowed to exempt more than five members; and
   2. In order for the written certification of exemption to be in effect, the corporate officer must be identified by name as well as by the office held at the time of certification and the member of the limited liability company must be identified by name; and
   3. Any employer subject to this chapter pursuant to subsection (a) of Code Section 34-9-2 before the filing of any exemptions shall remain subject to this chapter without regard to the number of exemptions filed. However, in the event that there shall be no covered employees once exemptions are elected, no coverage shall be required unless and until additional employees are employed.
2. A corporate officer or a member of the limited liability company who has exempted himself or herself by proper certification from coverage under this chapter may at any time revoke such exemption and thereby accept coverage under this chapter by giving certification to such effect in the same manner as provided in subsection (a) of this Code section relative to exemption from coverage.
3. No certification given pursuant to subsection (a) or (b) of this Code section shall become effective until it is filed with the proper entity.

(Code 1933, § 114-201, enacted by Ga. L. 1982, p. 2360, § 2; Code 1981, §34-9-2.1, enacted by Ga. L. 1982, p. 2360, § 4; Ga. L. 1988, p. 1679, § 1; Ga. L. 1995, p. 642, § 1; Ga. L. 1996, p. 1291, § 3.)

- Employees covered under this chapter generally, § 34-9-1.

- Ga. L. 1995, p. 642, § 13, not codified by the General Assembly, provides for severability.

Exemptions by corporate officers are ineffective to reduce the employee count for determining applicability of the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., except when the exemptions reduce the employee count to zero. Once an "additional employee" is hired, corporate officers must be included in the total employee count regardless of whether they are personally exempt from the act. Hitchcock v. Jack Wiggins, Inc., 249 Ga. App. 845, 549 S.E.2d 806 (2001).

Cited in Chandler v. Hancock Bldrs., Inc., 205 Ga. App. 303, 422 S.E.2d 206 (1992).

- For review of 1998 legislation relating to labor and industrial relations, see 15 Ga. St. U.L. Rev. 185 (1998). For article, "Workers' Compensation," see 53 Mercer L. Rev. 521 (2001). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 285 (1992). For note on the 2000 amendment of this Code section, see 17 Ga. St. U.L. Rev. 231 (2000).

JUDICIAL DECISIONS

Common law decision's retroactive application.

- Superior court's holding that the Lee Fabricators case, holding that O.C.G.A. §§ 34-9-200 and34-9-201 prescribe the exclusive method for changing physicians or treatment, should not be applied retroactively required reversal as there was no evidence that such an application would work significant hardship or injustice. Dart Container Corp. v. Jones, 209 Ga. App. 331, 433 S.E.2d 417 (1993); Craig v. Red Lobster Restaurant, 214 Ga. App. 829, 449 S.E.2d 307 (1994).

If an employer fails to maintain the required panel of physicians, the medical treatment received by an employee on account of the employment-related injury is deemed, for statute of limitation purposes, to be remedial treatment furnished by the employer. Georgia Inst. of Technology v. Gore, 167 Ga. App. 359, 306 S.E.2d 338 (1983).

Because there was a genuine issue of fact as to whether the defendant's stepson was an employee thereby subjecting the defendant to the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., there was no "admitted" failure to comply with O.C.G.A. § 34-9-201, and the plaintiff's failure to properly file a claim within the statute of limitations resulted in the claim being time-barred. Gann v. Poe, 236 Ga. App. 138, 512 S.E.2d 1 (1999).

O.C.G.A. §§ 34-9-201(d) [now (e)] and34-9-200(b) provide the sole method of changing physicians or treatment, including, apparently, any change effected by the employer-approved physician in referring the employee to another physician pursuant to subsection (c) (see (b)(1)). Therefore, an employer-approved physician has no authority under subsection (c) (see (b)(1)) to effect a change of physician or treatment by "revoking a referral," regardless of how such revocation is made. Brown v. Transamerica IMS, 200 Ga. App. 272, 407 S.E.2d 430 (1991).

- Trial court erred in concluding that the claimant was automatically entitled to a change of physician as the State Board of Workers' Compensation found that the claimant's work-related injuries had resolved as of August 1, 2017, which predated the request for a change in a treating physician; thus, the Board properly denied the request. Hartford Cas. Ins. Co. v. Hawkins, 353 Ga. App. 681, 839 S.E.2d 230 (2020).

Worker's change of physician not justified. See K-Mart Corp. v. Anderson, 166 Ga. App. 421, 304 S.E.2d 526 (1983).

Workers' Compensation Board's conclusion that the employer was not liable for payment of certain medical bills and not subject to a 15 percent late payment penalty was affirmed because if the employee was unhappy with the treating physician the employee's options were to ask the employer to change the employee's treating physician or to petition the Board for approval to change, but the employee was not entitled to change physicians unilaterally and require the employer to pay for it. Zheng v. New Grand Buffet, Inc., 321 Ga. App. 308, 740 S.E.2d 302 (2013).

- When employer contended that certain treatment for which compensation was being sought was unauthorized, the employer was liable only for medical expenses ordered by the physician to whom the claimant had been referred by the initially authorized physician for physical therapy, as such other expenses were unauthorized due to a failure to relate to physical therapy, and that no order was obtained from the Workers' Compensation Board changing the physicians and/or treatment originally extant. Holcombe v. Brown Transp. Corp., 253 Ga. 719, 324 S.E.2d 446 (1985).

Employee was not entitled to recover medical expenses incurred at the hands of an unauthorized physician prior to the filing of a notice to controvert by the employer, when the employee was aware of the panel of physicians since the employee had prepared and posted the list. State v. Tungler, 181 Ga. App. 21, 351 S.E.2d 248 (1986).

Employer's failure to timely file a notice to controvert did not preclude it from denying responsibility for medical services from a physician not on the posted panel, when the employer had no reason to assume that claimant was seeking workers' compensation medical, rather than income, benefits. ITT-Continental Baking Co. v. Powell, 182 Ga. App. 533, 356 S.E.2d 267 (1987).

When the employer agreed to pay medical expenses incurred from the employee's unapproved medical providers with the stipulation that one of the unapproved providers would be the employee's authorized treating physician and the employer would not be liable for any additional charges by other medical providers, the ALJ was correct in finding that the employee would not be reimbursed for expenses which occurred after this agreement was reached. Owens-Illinois, Inc. v. Champion, 203 Ga. App. 736, 417 S.E.2d 703, cert. denied, 203 Ga. App. 907, 417 S.E.2d 703 (1992).

Employer did not "controvert" employee's claim by refusing to pay for treatment by a physician not on the employer's approved panel; it simply asserted its rights under subsection (c) of O.C.G.A. § 34-9-201 (as it existed prior to the 1994 amendment) and was not responsible for the unauthorized charges. Nu Skin Int'l, Inc. v. Baxter, 211 Ga. App. 32, 438 S.E.2d 130 (1993); Georgia Baptist Medical Ctr. v. Moore, 219 Ga. App. 171, 464 S.E.2d 265 (1995).

The 1994 amendment of paragraph (b)(1) of O.C.G.A. § 34-9-201, providing that authorized physicians may "arrange for any consultation, referral . . . or other medical services . . . without prior authorization of the board", applied retroactively to require an employer to pay for medical services provided by a psychiatrist to whom claimant was referred without authorization by the approved treating physician. Porter v. Ingles Mkt., Inc., 219 Ga. App. 145, 464 S.E.2d 212 (1995).

The 1994 amendment of paragraph (b)(1) of O.C.G.A. § 34-9-201, providing that the authorized treating physician may arrange for referrals to other medical practitioners without prior authorization from the board, was remedial and should be given retroactive effect. Barnes v. City of Atlanta Police Dep't, 219 Ga. App. 139, 464 S.E.2d 609 (1995).

Employer was liable for employee's precontrovert medical expenses even though the employee sought treatment from a personal physician rather than an authorized physician, because the employer's failure to provide workers' compensation coverage rendered ineffective any list of physicians posted by the employer. Kwon v. Fleming, 184 Ga. App. 861, 363 S.E.2d 28 (1987).

- When an employer cuts the employee off from receiving medical benefits, the employee is entitled to see any doctor if the employee can prove the employee is still injured at the time as a result of the accident. Boaz v. K-Mart Corp., 254 Ga. 707, 334 S.E.2d 167 (1985).

Employee who had been dismissed from treatment by an approved or posted physician as cured, even though still in need of treatment, was justified in going to a nonposted physician of the employee's choice. Pritchard Servs. v. Lett, 183 Ga. App. 298, 358 S.E.2d 842 (1987).

Because the evidence relied upon by the Appellate Division was incomplete, misstated that physical therapy was completed a year later than the therapy was, and included evidence that the employee sought treatment from a third physician after the employee's authorized physicians released the employee to work, a decision denying the employee's request for payment of unauthorized medical expenses was vacated; remand was required to determine whether the treatment was related to the employee's work injury. Lane v. Williams Plant Servs., 330 Ga. App. 416, 766 S.E.2d 482 (2014).

Because an employee's authorized physicians discharged the employee and released the employee to work without restrictions in April 2010, and the question of whether the employee's subsequent unauthorized medical treatment was related to the employee's work injury was not addressed below, the employee's claim was remanded for a determination of that issue. Lane v. Williams Plant Servs., 330 Ga. App. 416, 766 S.E.2d 482 (2014).

- Employee will be liable for nonauthorized treatment if the expenses are incurred without giving the employer an opportunity to furnish treatment; if the employer does not adequately meet the duty of providing treatment the employee may make other arrangements and once treatment by a physician is undertaken an employer may not change positions and cut off the right to continue such treatment. Boaz v. K-Mart Corp., 254 Ga. 707, 334 S.E.2d 167 (1985).

- When an employee's severe depression was an "emergency" at the time of the employee's hospitalization, the employer was liable for associated medical expenses. K Mart Corp. v. Bright, 210 Ga. App. 658, 436 S.E.2d 801 (1993).

Cited in Dairymen, Inc. v. Wood, 162 Ga. App. 430, 291 S.E.2d 763 (1982); Georgia Power Co. v. Brown, 169 Ga. App. 45, 311 S.E.2d 236 (1983); Brown Transp. Corp. v. Holcombe, 171 Ga. App. 532, 320 S.E.2d 552 (1984); Southeastern Aluminum Recycling, Inc. v. Rayburn, 172 Ga. App. 648, 324 S.E.2d 194 (1984); Fitzpatrick v. GMC, 172 Ga. App. 515, 323 S.E.2d 703 (1984); Scandrett v. Talmadge Farms, Inc., 174 Ga. App. 547, 330 S.E.2d 772 (1985); Keenan v. Jackson & Keenan Constr. Co., 175 Ga. App. 730, 334 S.E.2d 329 (1985); Howard v. Superior Contractors, 180 Ga. App. 68, 348 S.E.2d 563 (1986); Hardee's v. Bailey, 180 Ga. App. 332, 349 S.E.2d 211 (1986); Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654, 350 S.E.2d 299 (1986); Southwire Co. v. Hull, 212 Ga. App. 131, 441 S.E.2d 293 (1994); Capital Atlanta, Inc. v. Carroll, 213 Ga. App. 214, 444 S.E.2d 592 (1994).

RESEARCH REFERENCES

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, §§ 452, 453.

- 100 C.J.S., Workers' Compensation, § 548.

- Workmen's compensation: applicability of provisions as to medical or surgical services as affected by the character or qualifications of the person rendering them, 40 A.L.R. 1265.

Workmen's compensation: duty of injured employee to submit to an examination, 41 A.L.R. 866.

Workmen's compensation: selection or change of physician, surgeon, or hospital, 142 A.L.R. 1205.