August 11, 2010

Has the threat of the WC-205 lost its bite? Selective HR Solutions, Inc. v. Mulligan

by Christina Bevill, Esq.

Does the failure of the employer/insurer to respond to a WC-205 request for advanced authorization of medical treatment or testing, within five business days, trigger a right to payment of that medical care - regardless of whether the underlying injury is work-related? The Court of Appeals has determined it does not.

Ms. Mulligan injured her back at work in July of 2006. She recovered enough to work. In May of 2007 she re-injured her back at home. She treated with a few different doctors and even submitted payment for her medical bills through her private insurance. On October 26, 2007, a treating doctor concluded lumbar surgery was needed and sent a WC-205 to the workers’ compensation insurance carrier requesting authorization to proceed with surgery. On December 11, 2007, the insurance company faxed the form back refusing to authorize the surgery. The surgeon operated three days later. The Board found the employee did not show a change in condition for the worse or that surgery was compensable. The Superior Court affirmed this decision but reversed the award denying medical treatment. The Superior Court found that because the insurance company failed to respond within five business days, there was an obligation to pay for the medical treatment.

The Court of Appeals disagreed and reversed to the extent that Board Rule 205 essentially alters the burden of proof as to compensability in favor of a claimant. The State Board of Workers’ Compensation is limited in its ability to make rules in that the rules must be consistent with the Workers’ Compensation Act and they cannot enlarge, reduce or otherwise affect the substantive rights of the parties. Because the effect of the rule shifts the burden of proof from the claimant to the employer on the issue of compensability, Board Rule 205 is invalid to this extent. However, where compensability is not an issue, failure to timely respond by the employer/insurer may result in civil penalties and attorneys fees. In short, Board Rule 205 becomes ineffective only when there is a dispute as to whether or not an underlying injury is work-related. However, for compensable injuries a Board form WC-205 remains a viable document and should be addressed immediately upon receipt.

If you have questions or comments, contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at Nothing contained in this blog should be construed as legal advice or opinion on specific facts. For editorial comments or suggestions, please contact David W. Willis at (404) 446-4491 or by replying to this email.

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