by Alissa C. Atkins, Esq.

On October 3, 2011, the Supreme Court of Georgia issued an opinion in the case of Mulligan v. Selective HR Solutions, Inc.,— S.E. 2d — , 2011 WL 4532528. In the decision, the Court addressed the authority of the State Board of Workers’ Compensation to issue Rule 205, which provides that medical treatment and testing prescribed by an authorized treating physician shall be paid under certain conditions if the provider issued a WC-205. Within five business days, an Insurer/Self-Insurer must respond to the WC-205. If the treatment is denied, within 21 days the Insurer/Self-Insurer is required to either:

(a) Authorize the requested treatment or testing in writing; or
(b) File with the Board a form WC-3 controverting the treatment or testing indicating the specific grounds for the controversion

Failure to follow the above requirements can deem the treatment authorized. The Court has now clarified that the Insurer/Self-Insurer cannot be required to approve unrelated care regardless of the use of a WC-205. The case before the Court involved a woman who injured her back at work in September 2005, and underwent lumbar surgery prior to returning to work in July 2006. In May 2007, the claimant fell at home and re-injured her back and treated with her personal physician. Later that year, she returned to the authorized treating physician for the workers’ compensation claim, who determined the claimant required an additional lumbar surgery and sent Board form WC-205 to the Employer/Insurer requesting pre-authorization for surgery. Although the WC-205 was sent on October 26, 2007, the response denying the procedure was not sent until December 2007. The authorized treating physician nonetheless opted to proceed with surgery, and the Employer/Insurer refused to pay.

The court found the Employer/Insurer had the right to argue the compensability of the procedure at issue. Simply because they did not timely respond to the WC-205 form, the Employer/Insurer argued it should not be required to pay for the surgical expenses without a finding that the surgery should have been compensable. The Court found that the mere refusal to respond to a request for treatment does not obligate an Employer/Insurer to approve the procedure, because the Employer/Insurer cannot be obligated to approve treatment that is not related to the compensable injury.

Effective July 1, 2011, Rule 205(b)(4) was revised to read “where the Employer fails to comply with Rule 205(b)(3), the Employer shall pay for the treatment/test requested…related to the compensable injury.”

Please note that the Court did indicate that an Employer/Insurer could still be responsible for sanctions for failing to respond timely to a WC-205, indicating that the Board had the authority to assess civil penalties or attorney fees pursuant to O.C.G.A. § 34-9-18(a). The full text of the Mulligan v. Selective HR Solutions decision can be found here.