by Mike Rosetti
Another topic gaining momentum is whether defense attorneys are permitted to meet with treating doctors. Questions concerning privacy and legal ethics are raised by such meetings.
The claimant’s bar has relied on the Moreland v. Austin case, decided by the Supreme Court of Georgia, to argue that “ex parte” communications are not permissible in workers’ compensation cases. The Moreland case, however, is not binding since it involves a medical malpractice claim, which is subject to the provisions of HIPAA. Since workers’ compensation is not subject to HIPAA rules associated with the release of information, the case has limited application.
This is an issue which has grown momentum in recent years. The ability of the employer/insurer’s legal representative to meet with treating physicians and provide all information relevant to a claim, instead of their reliance on limited information from a claimant, has allowed parties to successfully move cases forward. The claimant’s bar’s stated concern is that allowing defense attorneys to speak with doctors skews the resulting medical opinion(s). The reality, however, is that most employers/insurers want to ensure that when doctors issue opinions, it is based on all the facts. Simply put, the best way to confirm that all the facts are known is to meet with or speak to the doctor.
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. 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 at david.willis@davidandrosetti.com.
October 28, 2010
The future of the WC-205 - - the continuing debate
by Mike Rosetti
Although it was only an official topic for one session, several of the panels addressed the issues associated with this controversial provision. Board form WC-205 allows an authorized treating physician to request pre-authorization for a proposed test or treatment. The form must be signed by the authorized treating physician and sent to the adjuster, who then has five business days to authorize or deny the requested treatment. According to Board Rule 205, the failure to respond to the form within five days renders the requested treatment automatically approved. The recent Court of Appeals of Georgia decision in Mulligan raised doubts about a claimant’s ability to enforce this provision. As noted in our previous newsletter, the Court in Mulligan found the WC-205 could not be used to shift the burden of proof for appropriate medical treatment to the employer/insurer.
A primary concern by claimant’s attorneys is that reasonable and necessary medical treatment is delayed without the WC-205. From the employer/insurer perspective, allowing five business days is not a fair opportunity to evaluate a proposed treatment to determine whether it meets the requirements of O.C.G.A. 34-9-201.
The consensus was that the WC-205 can still be used in certain circumstances, primarily for treatment to compensable body parts being recommended by the authorized treating physician. As such, it remains imperative to respond to a WC-205 request for pre-authorization within five business days. If the proposed treatment is denied, a WC-3 must be filed within 21 days of the date the WC-205 was submitted.
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. 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 at david.willis@davidandrosetti.com.
Although it was only an official topic for one session, several of the panels addressed the issues associated with this controversial provision. Board form WC-205 allows an authorized treating physician to request pre-authorization for a proposed test or treatment. The form must be signed by the authorized treating physician and sent to the adjuster, who then has five business days to authorize or deny the requested treatment. According to Board Rule 205, the failure to respond to the form within five days renders the requested treatment automatically approved. The recent Court of Appeals of Georgia decision in Mulligan raised doubts about a claimant’s ability to enforce this provision. As noted in our previous newsletter, the Court in Mulligan found the WC-205 could not be used to shift the burden of proof for appropriate medical treatment to the employer/insurer.
A primary concern by claimant’s attorneys is that reasonable and necessary medical treatment is delayed without the WC-205. From the employer/insurer perspective, allowing five business days is not a fair opportunity to evaluate a proposed treatment to determine whether it meets the requirements of O.C.G.A. 34-9-201.
The consensus was that the WC-205 can still be used in certain circumstances, primarily for treatment to compensable body parts being recommended by the authorized treating physician. As such, it remains imperative to respond to a WC-205 request for pre-authorization within five business days. If the proposed treatment is denied, a WC-3 must be filed within 21 days of the date the WC-205 was submitted.
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. 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 at david.willis@davidandrosetti.com.
Honorable Richard S. (Rick) Thompson’s State of the Board address
by Mike Rosetti
Chairman Thompson delivered a “State of the Board” address to the attendees, addressing some legislative changes as well as important trends.
A. Appellate Division Award to be Published
The most significant legislative update was the requirement that the Board publish Appellate Division awards. While these awards are not necessarily binding precedent, they are persuasive authority and give parties an opportunity to see how the Board is addressing recurring issues.
B.Settlements approved with greater speed; fewer settlements generally
Chairman Thompson referenced the statistics kept by the Board documenting the increased speed with which settlements are approved. In calendar years 2008 and 2009, there were no months in which 90% of settlement were approved within 10 days. By contrast, in every month of this year, at least 90% of settlements were approved within 10 days. Of note, the statistics demonstrated there are fewer settlements being submitted to the Board. In 2009, there were an average of 1,335 settlement submitted to the Board for approval per month. For the first seven months of 2010, there was an average of 1,115 settlement submitted.
C. ALJ Awards issued with greater speed
The speed with which ALJ awards are issued has increased dramatically. In October 2009, only 44% of awards were issued within 60 days. By contrast, in June 2010 (the last month statistics were available), 97% of awards were issued within 60 days of the hearing.
***
The theme of Judge Thompson’s report was that the Board is operating with greater efficiency, and the statistics bear this out. This is beneficial for all parties as quicker resolutions usually lead to decreased costs.
If you have questions or comments, please
contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. 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 at david.willis@davidandrosetti.com.
Chairman Thompson delivered a “State of the Board” address to the attendees, addressing some legislative changes as well as important trends.
A. Appellate Division Award to be Published
The most significant legislative update was the requirement that the Board publish Appellate Division awards. While these awards are not necessarily binding precedent, they are persuasive authority and give parties an opportunity to see how the Board is addressing recurring issues.
B.Settlements approved with greater speed; fewer settlements generally
Chairman Thompson referenced the statistics kept by the Board documenting the increased speed with which settlements are approved. In calendar years 2008 and 2009, there were no months in which 90% of settlement were approved within 10 days. By contrast, in every month of this year, at least 90% of settlements were approved within 10 days. Of note, the statistics demonstrated there are fewer settlements being submitted to the Board. In 2009, there were an average of 1,335 settlement submitted to the Board for approval per month. For the first seven months of 2010, there was an average of 1,115 settlement submitted.
C. ALJ Awards issued with greater speed
The speed with which ALJ awards are issued has increased dramatically. In October 2009, only 44% of awards were issued within 60 days. By contrast, in June 2010 (the last month statistics were available), 97% of awards were issued within 60 days of the hearing.
***
The theme of Judge Thompson’s report was that the Board is operating with greater efficiency, and the statistics bear this out. This is beneficial for all parties as quicker resolutions usually lead to decreased costs.
If you have questions or comments, please
contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. 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 at david.willis@davidandrosetti.com.
Georgia Workers' Compensation Annual Seminar
The annual Georgia workers’ compensation seminar sponsored by the Institute of Continuing Legal Education concluded on October 2, 2010. Nearly 500 lawyers practicing Georgia workers’ compensation law attended the conference. Mike Rosetti co-chaired the event and Ken David presented on “Medicare Madness.” There were several items of note from the conference.
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. 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 at david.willis@davidandrosetti.com.
If you have questions or comments, please contact your David & Rosetti attorney at 404-446-4488 or by visiting our website at www.davidandrosetti.com. 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 at david.willis@davidandrosetti.com.
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