On May 24, 2023, the Court of Appeals in Georgia found an employer’s posted panel of physicians to be invalid solely because of the location where the panel was posted. (See Lilienthal v. JLK, Inc., et al. A23A0290). The Court found that the panel was not posted in a prominent place because it was not in a location seen by most of the employees on a regular basis. As a result, the employer’s panel was deemed invalid, and the employee was therefore free to elect care with a non-panel provider of her choice.
In Lilienthal v. JLK, Inc., et al., the employer posted their panel of physicians in a locked room. The key to the door of the room was maintained by one of the injured employee’s colleagues who worked in the front office. The injured employee testified that she rarely had a business need to enter the locked room and therefore never or rarely ever did so.
However, at her new hire orientation and prior to her injury, the injured employee had executed an acknowledgement which stated where the panel was located. Additionally, following the employee’s report of her injury, the employer provided the injured employee with a photocopy of the panel. Despite the same, the Court found that the panel was invalid because it was not posted in a prominent location.
The Georgia Workers’ Compensation Act does not define prominent. As such, the Court of Appeals analyzed the issue by assigning prominent its ordinary meaning, noting that prominent is defined as “standing out,” “immediately noticeable,” and “situated so as to catch attention.” The Court of Appeals concluded that a prominent location for the employer’s panel of physicians is a location easily seen, on a regular basis, by most employees working on the premises.
What About Remote Employees or Employees with Different Daily Locations?
This obviously begs the question of where the panel of physicians should be posted for employers whose employees work remotely, at other locations, and/or who regularly travel. Unfortunately, the Georgia State Board of Workers’ Compensation has not yet provided a definitive answer, and we are therefore left to make own deductions.
If employees work exclusively remote or at different locations daily, the employer’s intranet location where employees are regularly directed could be deemed a prominent location, especially if the employer creates a mandate that the employee review the intranet location on a regular basis for employment related information. In such situations, the employer may also wish to provide each new hire a copy of the panel and obtain a written acknowledgement from the employee during the new hire process confirming the location of the panel and the employee’s obligation to review the intranet location regularly. Companies with advanced technology capabilities could also direct their employees to the intranet location for review of the panel each time the employee electronically signs into their computer network to work or otherwise clocks in.
Temporary Staffing Agencies Should Also Post Panel At Client Location
For staffing agencies, it may no longer be prudent to only post the panel of physicians in their own business premises. Given the analysis by the Court of Appeals in Lilienthal v. JLK, Inc., et al., the location is prominent only if the location is easily seen, on a regular basis, by most employees. As such, it may be advisable to post the panel at both their own business premises and on the business premises where their employees are assigned to work.
To have a valid panel, the employer must fully comply with the requirements set out in O.C.G.A. § 34-9-201, Rule 201 of the Rules and Regulations of the State Board of Workers’ Compensation, and the case law interpreting the statute and the rule. Policyholders may contact their Claim Specialist at Prescient National to review the requirements of a valid posted panel of physician and/or to obtain an updated panel.
Disclaimer: This information is designed to provide helpful guidance to our Policyholders and is not intended to be and should not be construed as legal advice. No representations of any kind, expressed or implied, are intended or given. Although Prescient National has made efforts to ensure that the information provided is accurate, statutes and rules evolve and are subject to different interpretations over time.
