Recent Decision from the Alabama Court of Civil Appeals 22 Nov 2016
The Alabama Court of Civil Appeals recently released a decision in Augmentation, Inc. v. Harris, No. 2150307, 2016 Ala. Civ. App. LEXIS 247 (Sep. 23, 2016) that further emphasized the importance of proper utilization review. In the case, an employee injured her back, neck, and left shoulder while on the job and pursued a worker's compensation claim against the employer. A trial court entered a judgment in April 2014 incorporating the settlement of the parties and declaring that future medical benefits would remain open. The next year, in March 2015, the employee moved to hold the employer in contempt for failure to pay for an epidural steroid injection for her back. Although the employer raised arguments in regard to underlying issues with the original settlement and discovery, the Court of Civil Appeals ultimately affirmed the trial court's decision holding the employer in contempt. The employer was ordered to pay the employee's attorney fees and reimburse medical expenses. The Court of Appeals found that there was no evidence of the employer trying to contact the treating physician or question the treatments and that there was no attempt at utilization review before denial of coverage. The Court remarked that "sanctions for contempt 'should not be imposed if the employer has a valid reason to question its liability for the medical expense in dispute'" (Travelers Indem. Co. of Illinois v. Griner, 809 So.2d 808, 814 (Ala. 2001)). This is yet another reminder of proper utilization review and challenges associated with paying future medicals.
Please feel free to contact us with any questions regarding utilization review or the payment of medicals after indemnity benefits are resolved.
Recent Decision From The Appellate Division Of The State Board Of Workers' Compensation
In a recent appellate case decided by the Georgia State Board of Workers' Compensation, the Claimant in an accepted case initially treated at Concentra Medical Centers, which was listed on the Employer's Posted Panel of Physicians. Before the Claimant began treating, the Employer did not explain to the Claimant that she had a right to select any provider listed on the Panel. She treated at Concentra thirteen times between July of 2004 and January of 2005. She then requested a change of physicians to Dr. Lee Kelley, and the trial judge granted her request on the basis that the Employer violated O.C.G.A. § 34-9-201 when it did not explain the Claimant's rights with respect to the Panel. Thus, the Claimant's authorized treating provider was changed from Concentra Medical Centers to Dr. Kelley. Later, the Claimant sought a change of physicians from Dr. Kelley to Dr. Mary Taylor pursuant to Board Rule 201(c), which allows a claimant to change her authorized treating physician to a different panel doctor one time without the approval of the employer or the Board. The Board granted her request on the grounds that the Claimant did not select Concentra as her initial medical provider. Instead, the Board held that her selection of Dr. Kelly was her first genuine choice of an authorized treating provider, entitling her to a one-time change from Dr. Kelley to another panel physician. This case demonstrates the importance of explaining to the claimant the function of the posted panel of physicians and allowing the claimant to choose any provider from the panel. Not doing so will likely mean that the claimant will get "a second bite at the apple" and can see a second doctor without using her one-time right to change physicians under Board Rule 201(c).
Paschall Truck Lines, Inc. v. Kirkland, 287 Ga. App. 497 (2007)
Where the employer/insurer assert a subrogation lien against the proceeds of the claimant's third-party tort claim, the employer/insurer are only entitled to recovery "if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim for economic and non-economic losses incurred as a result of the injury." O.C.G.A. § 34-11-11.1(b). The Court of Appeals of Georgia has stated that the primary legislative concern underpinning the right of subrogation is that "the injured employee first be made whole" and the interest of the employer/insurer only be considered thereafter. North Bros. Co. v. Thomas, 236 Ga. App. 839 (1999). Where the third-party case proceeds to a jury verdict, the issue of full and complete compensation is easily decided by the use of a special verdict form. However, where the claimant reaches a lump-sum settlement of the third-party case, the Court of Appeals has held that "a reviewing court cannot determine from the settlement documents what portion of the settlement was allocated to economic losses and what portion was meant to compensate for non-economic losses. The result is that the lien cannot be enforced, because full and complete compensation cannot be shown." Paschall Truck Lines, Inc. v. Kirkland, 287 Ga. App. 497 (2007). The practical effect of the Paschall case is that the employer/insurer's subrogation lien is defeated by the settlement of the third-party case unless the settlement documents state the portion of the settlement proceeds which are allocated to economic losses.