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Latest Update - Panel of Physicians: Location Matters!

» Posted June 5, 2023Casey B. ForemanArticles, Newsletters

Recent Court of Appeals Decisions in Workers’ Compensation

 Casey B. Foreman, Partner
Levy, Sibley, Foreman & Speir, LLC

Panel of Physicians: Location Matters!


In the recent case of Lilienthal v. JLK, Inc., No. A23A0290, 2023 WL 3611404 (Ga. Ct. App. May 24, 2023), the Georgia Court of Appeals addressed the issue of whether the panel of physicians offered by the employer was prominently posted upon the work site’s premises. The employer posted the panel inside a supply closet that remained locked when not in use with the key kept in another office and available upon request. The employee testified she rarely entered the closet because it did not contain supplies or materials that she needed. While the lower courts found the panel of physicians to be valid, the Court of Appeals reversed and remanded.


O.C.G.A. § 34-9-201(c) states the employer must post the panel “in prominent places upon the business premises.” The Court of Appeals found “the ALJ erred by conflating the concept of accessibility with prominence.” The Court of Appeals assigned “prominent” its ordinary meaning including “conspicuous, or easily seen location.” Here, the Court of Appeals found the panel was not easily seen by most employees as it required employees to retrieve a key to enter a locked closet.


Further, the employee acknowledged the panel as part of her new hire orientation and the employer provided her a copy of the panel post-accident. The Court of Appeals found these efforts did not negate the requirement to post the panel in a “prominent” location. As a result, the employer’s panel was deemed invalid, and the employee was free to treat with a non-panel provider of her choice.


This case serves as a reminder that the “best practice” is to post panels in multiple locations frequented by employees on a daily basis (i.e., employee breakroom, beside time clock). Posting panels in multiple locations can greatly reduce arguments as to the “prominent” requirement. While the facts involved in this case are unique, employers and insurers can expect employees to argue this case applies in other scenarios. The Court of Appeals did not address what the “prominent” requirement meant for non-traditional employers such as staffing companies or those with remote workforces. For those with advanced technology, one option is placing a copy of the panel on the employer’s intranet location and regularly directing employees to review the panel. Staffing agencies should also consider placing panels at all locations staffing their employees. Although ultimately it did not “save” the employer’s panel here, employers should continue to present the panel to employees during orientation and after a work-accident. All employers should carefully review their locations and practices related to the panel of physicians to ensure compliance.



COVID-19 and “Statute of Repose”

In the recent case of Coastal Home Care v. Fann-Roberts, No. A23A0053, 2023 WL 3733957 (Ga. Ct. App. May 31, 2023), the Georgia Court of Appeals addressed the impact of the Chief Justice’s Orders issued during the COVID-19 pandemic on the workers’ compensation “statute of repose.” Often referred to as a “statute of repose,” O.C.G.A. § 34-9-100(d)(1) provides that “any claim filed with the [State Board] for which neither medical nor income benefits have been paid shall stand dismissed with prejudice by operation of law if no hearing has been held within five years of the alleged date of injury.” In the wake of COVID-19, the Chief Justice issued Orders declaring a Statewide Judicial Emergency tolling statutes of limitation and other deadlines for the 122-day period of March 14, 2020, to July 14, 2020. Here, the Administrative Law Judge dismissed the employee’s hearing in 2021 exactly five years after the alleged date of injury pursuant to O.C.G.A. § 34-9-100(d)(1). The employee argued the Chief Justice’s Orders tolled O.C.G.A. § 34-9-100(d)(1) and granted an additional 112 days past the five years in which to hold a hearing. The employer argued the Chief Justice’s Orders did not apply as a hearing was not pending at the time of the Orders and the Orders did not apply to statutes of repose. The Court of Appeals rejected the employer’s arguments, finding the employee had 5 years and 112 days after her alleged date of injury in which to hold a hearing. Employers and Insurers should keep this in mind when seeking a dismissal or closure of denied claims occurring pre-COVID-19.