"This case is about the employer failing to meet its obligation under this crystal-clear statute and the failure of the judges below to uphold the statute, and instead, rewriting the law to get around it," Atlanta attorney Sergio Camilo-Steven Ardila-Ibarra argued. "The statute provides and I quote, 'the employer shall post the panel of physicians in prominent places on the business premises.' That is OCGA 34-9-201C and the only issue before this court is whether the employer posted its panel in prominent places." Caption: (Credit: danielfela/Shutterstock.com)
The Georgia Court of Appeals will soon decide whether an employer's insurance should have to pay for an injured day care worker's medical treatment by her preferred physician.
Workers' compensation lawyers on either side of the case are at odds about whether strict liability applied to the employer's legal requirement to display a poster informing its employees of a list of physicians from whom they may seek treatment if injured on the job.
'Crystal-clear statute'
Arguing on behalf of appellant Linda Lilienthal, Atlanta attorney Sergio Camilo-Steven Ardila-Ibarra homed in on state law surrounding panel physician selection and employer liability for failure to maintain a panel.
Ardila-Ibarra argued that appellee JFK Inc., the operator of a day care facility, failed to ensure signage informing employees of its panel of physicians had been posted in a manner that complied with state law.
Atlanta attorney Sergio Camilo-Steven Ardila-Ibarra appeared on behalf of appellant before the Georgia Court of Appeals in Linda Lilienthal v. JLK, Inc. et al. on Wednesday. (Courtesy photo) "This case is about the employer failing to meet its obligation under this crystal-clear statute and the failure of the judges below to uphold the statute, and instead, rewriting the law to get around it," Ardila-Ibarra argued. "The statute provides and I quote, 'the employer shall post the panel of physicians in prominent places on the business premises.' That is OCGA 34-9-201C and the only issue before this court is whether the employer posted its panel in prominent places."
In addition to keeping the panel posted "in a locked room with the lights off," appellant counsel argued employees' access to the resource room containing the physician information had been further inhibited by the appellee's posting of a sign that read, "this door must be kept locked at all times." In order to access the panel, Ardila-Ibarra said employees, including his client, had to obtain a key kept "in a closed metal box, in a closed drawer, in a desk used by administration."
Appellant counsel contended that because the panel had not been posted in a prominent place easily accessible to employees, the appellee should be prohibited from denying his client's desire to be treated by a nonpaneled physician. Ardila-Ibarra argued that, under the Georgia physician panel statute, employers must "comply with every single element of the statute," for failure to do so enables an injured employee to select their own physician at the employer's expense.
"Each subcategory of the statute is followed by 'and,' so the employer has to post the panel prominently and must take all reasonable steps to ensure that the employee understands their rights and, if it fails to fulfill any of those requirements, then the employee gets to select a physician of her choosing," Ardila-Ibarra argued.
'A factual determination'
M. Ann Nama McElroy of Swift Currie in Atlanta. (Courtesy photo) Across the aisle, appellee attorney M. Ann Nama McElroy partnered with fellow Swift Currie McGhee & Hiers workers' compensation attorney Robert B. Peery to represent JLK Inc. and its insurer, Accident Fund Insurance Co. of America.
Appellee counsel urged the intermediate appellate court to uphold an order by Gwinnett County Superior Court Judge Keith Miles affirming that the employer's panel had been posted in a prominent place. McElroy argued that the trial court reached its conclusion after considering a ruling by an administrative law judge and workers' compensation appellate board.
"This is a factual determination," McElroy argued. "This is not an application of statutory construction or an erroneous application of law. The only issue is whether this panel was posted in a prominent place."
Appellee counsel argued the resource room containing the physician panel had only been locked to prevent student access, but that locking the door didn't preclude employees' access. McElroy conceded that the administrative law judge determined it "arguable that the employer did not post the panel in the best place," but that "posting it in the resource room … was sufficient to satisfy OCGA 34-9-201."
Presiding Judge Anne Elizabeth Barnes, Georgia Court of Appeals. (Photo: John Disney/ALM) The argument sparked the interests of both Division 1 judges. Presiding Judge Barnes homed in on the administrative law judge's wording about the appellee's placement of the panel in the resource room.
"She said it satisfied [OCGA 34-9-201]," Barnes said. "She didn't say it was 'prominent.'"
McElroy replied that in order to satisfy the statute, the panel had to be posted in a prominent place.
"It's not prominent if you post something in a room nobody ever goes in," Land interjected. "It's a relevant consideration."
On rebuttal, appellant counsel Ardila-Ibarra reiterated the absence of a ruling solely deciding whether the appellee had, in fact, posted its physician panel in a prominent location within its day care facility.
"No judge has made a finding that this panel was posted in a prominent place," Ardila-Ibarra argued. "There was a ruling based on a legal conclusion, but not a finding that this panel was posted prominently, and the legal conclusion relied upon an erroneous theory of the law."
The oral argument concluded with both judges thanking the litigators for their "well-argued" cases.
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