2021 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 6 - Payment of Compensation
Part 1 - Medical Attention
§ 34-9-201. Selection of Physician From Panel of Physicians; Change of Physician or Treatment; Liability of Employer for Failure to Maintain Panel

1. As used in this Code section, the term "physician" shall include any person licensed to practice a healing art and any remedial treatment and care in the State of Georgia.
2. The employer may satisfy the requirements for furnishing medical care under Code Section 34-9-200 in one of the following manners:
   1. The employer shall maintain a list of at least six physicians or professional associations or corporations of physicians who are reasonably accessible to the employees; provided, however, that the board may grant exceptions to the required size of the panel where it is demonstrated that more than four physicians or groups of physicians are not reasonably accessible. This list shall be known as the "Panel of Physicians." At least one of the physicians shall practice the specialty of orthopedic surgery. Not more than two industrial clinics shall be included on the panel. An employee may accept the services of a physician selected by the employer from the panel or may select another physician from the panel. The physicians 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. The employee may make one change from one physician to another on the same panel without prior authorization of the board; or
   2. A self-insured employer or the workers' compensation insurer of an employer may contract with a managed care organization certified pursuant to Code Section 34-9-208 for medical services required by this chapter to be provided to injured employees. Medical services provided under this paragraph shall be known as "Managed Care Organization Procedures." Those employees who are subject to the contract shall receive medical services in the manner prescribed in the contract. Each such contract shall comply with the certification standards provided in Code Section 34-9-208. Self-insured employers or workers' compensation insurers who contract with a managed care organization for medical services shall give notice to the employees of the eligible medical service providers and such other information regarding the contract and manner of receiving medical services as the board may prescribe.
3. Consistent with the method elected under subsection (b) of this Code section, the employer shall post the Panel of Physicians or Managed Care Organization Procedures in prominent places upon the business premises and otherwise take all reasonable measures to ensure that employees:
   1. Understand the function of the panel or managed care organization procedures and the employee's right to select a physician therefrom in case of injury; and
   2. Are given appropriate assistance in contacting panel or managed care organization members when necessary.
4. Notwithstanding the other provisions contained in this Code section, if an inability to make a selection of a physician as prescribed in this Code section is the result of an emergency or similarly justifiable reason, the selection requirements of this Code section shall not apply as long as such inability persists.
5. Upon the request of an employee or an employer, or upon its own motion, the board may order a change of physician or treatment as provided under Code Section 34-9-200.
6. If the employer fails to provide any of the procedures for selection of physicians as set forth in subsection (c) of this Code section, an employee may select any physician to render service at the expense of the employer.
7. The board shall promulgate rules and regulations to ensure, whenever feasible, the participation of minority physicians on panels of physicians maintained by employers or in managed care organizations pursuant to this Code section.

(Code 1933, § 114-504, enacted by Ga. L. 1978, p. 2220, § 9; Ga. L. 1990, p. 1409, § 6; Ga. L. 1992, p. 1942, §§ 16, 17; Ga. L. 1994, p. 887, § 11; Ga. L. 1998, p. 1508, § 4; Ga. L. 2000, p. 1321, § 3; Ga. L. 2001, p. 748, § 3; Ga. L. 2015, p. 1079, § 2/HB 412.)

The 2015 amendment, effective July 1, 2015, in subsection (b), in paragraph (b)(1), substituted "shall practice" for "must practice" in the third sentence, and added "or" at the end, deleted former paragraph (b)(2), which read: "The employer may maintain a list of physicians in conformity with the guidelines and criteria established and contained in the Rules and Regulations of the State Board of Workers' Compensation. This list shall be known as the "Conformed Panel of Physicians." An employee may obtain the services of any physician from the conformed panel and may thereafter also elect to change to another physician on the panel without prior authorization of the board. The physician so selected will then become the primary authorized treating physician in control of the employee's medical care and may arrange for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require without prior authorization by the board; provided, however, that any of the physicians to whom the employee is referred by the primary authorized treating physician shall not be permitted to arrange for any additional referrals; or", redesignated former paragraph (b)(3) as present paragraph (b)(2), and substituted "shall comply" for "must comply" near the beginning of the fourth sentence of paragraph (b)(2); and, in subsection (c), deleted "or Conformed Panel of Physicians" following "Panel of Physicians" in the introductory paragraph.

- 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), cert. denied, No. S20C0965, 2020 Ga. LEXIS 840 (Ga. 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.