JUST WHO HAS THE RIGHT TO REHAB ANYWAY? THE INVALIDITY OF SBWC RULE 200.2

I am convinced that rehabilitation services in non-catastrophic cases (which has historically been broadly defined to include case management)[1] should continue to be voluntary under O.C.G.A. §34-9-200.1(h) so that case management in any form can be terminated by the injured worker, and the right of the injured cannot lawfully be diminished by SBWC 200.2.

SBWC Rule 200.2, which was promulgated by the Board in January 2016, holds that “Consent of the employee or the employee’s attorney shall be required for any medical case manager to work with the injured worker. Consent shall be in writing when attending any medical appointment. Where consent is required, it may be withdrawn and the employee shall be informed in writing that such consent may be refused.”  The Rule adds to this that “Consent of the employee shall not be required for such qualified medical case manager to contact the treating physician for purposes of assessing, planning, implementing and evaluating the options and services required to effect a cure or provide relief.”  I do not believe case management is permissible under either circumstance when it’s done without the consent of the injured workers who clearly should continue to have a say-so in the matter under the law.

In promulgating the rule, the Board seems to have forgotten that as expressed in Rite-Aid Corp. v. Davis et al., 280 Ga.App. 522, 634 S.E.2d 480 (2006)Claimants with catastrophic injuries were entitled to mandatory rehabilitation services, but the need for such services was no longer evaluated for all claims. O.C.G.A. §34–9–200.1(a).” (emphasis added).   The Court in Davis elaborated that “In 1995, the legislature changed the language so that a claimant was no longer automatically deemed to have a catastrophic injury simply because he was awarded federal disability benefits, but was entitled to introduce that award into evidence for consideration. O.C.G.A. §34–9–200.1(g)(6) (1995). The 1995 legislation also now provided that the claimant had to prove he had an injury “that prevents the employee from being able to perform his or her prior work or any work available in substantial numbers within the national economy.”

In declaring this, the Davis court made clear that the right to rehabilitation services in catastrophic cases is the right of the injured, not the right of the employer and insurer.  Implied in this is that injured workers in non-catastrophic cases (where they no longer have the right to compel rehabilitation services from employers and insurers) are still vested with the right to not have rehabilitation services involuntarily imposed on them in non-catastrophic cases.  The right to reject case management is a vestige of the rights injured workers enjoyed prior to the 1995 amendments.

With this in mind, I believe that even if the new rule purportedly allows a qualified case manager to contact the treating physician for purposes of assessing, planning, implementing and evaluating the options and services required to effect a cure or provide relief (so long as they are not attending the Employee’s appointment according to the Rule), the Rule is nevertheless in conflict with O.C.G.A. §34-9-200.1(h) which holds “In the event of an injury that is not catastrophic, the parties may elect that the employer will provide a rehabilitation supplier on a voluntary basis for so long as the parties agree in writing.” (emphasis added).

The provisions of SBWC Rule 200.2 are in conflict with O.C.G.A. §34-9-200.1(h) in situations where the injured does not desire “voluntary” rehabilitation services including case management.  This is due to the fact no rules promulgated by the Board (which are supposed to be limited to governing procedures) can conflict with the substantive rights engendered by a statute nor change the judicial interpretation of a statute.  See Groover v. Johnson Controls, 241 Ga.App. 791, 527 S.E.2d 639 (2000). Moreover, not only is it prohibited for the rules to conflict with the substantive rights provided an injured worker by statute, as indicated above, board rules are limited to procedural remedies alone and cannot effect substantive rights.

Let us not forget, the Georgia Supreme Court expressed in Mulligan v. Selective HR Solutions HR Solutions, Inc., 289 Ga. 753, 716 S.E.2d 150 (2011) that “Under O.C.G.A. §34-9-59, the Board is empowered and authorized to adopt proper rules of procedure to govern the exercise of its functions and hearings before the [B]oard or any of its members or administrative law judges. However, this power is not without limitation. O.C.G.A. §34-9-60(a) states that [t]he [B]oard may make rules, not inconsistent with this chapter, for carrying out this chapter. The statutory converse of this rule is that the Board shall not make rules that are inconsistent with Chapter 9 of Title 34. . . .The State Board of Workers’ Compensation is an administrative commission, with such jurisdiction, powers, and authority as may be conferred upon it by the General Assembly. The Board is a creature of the statute, and has no inherent powers and no lawful right to act except as directed by the statute. It may exercise its rule-making powers under and within the law, but not outside of the law or in a manner inconsistent with the law. Although [O.C.G.A. §34-9-60] grants to the Board the power to make rules, not inconsistent with this Title, for carrying out the provisions of this Title, Board rules so promulgated may not enlarge, reduce, or otherwise affect the substantive rights of the parties.”

In my view, under the existing state of the law, case management in any form cannot be imposed on an injured worker in non-catastrophic cases.  Due to the fact “rehabilitation services” are broadly defined under Georgia law as “the task of restoring the man himself to the maximum usefulness  that he can attain under his physical impairment” (See Jackson v. Peachtree Housing Division of C.O. Smith Industries et al.,  187 Ga.App. 612, 371 S.E.2d 112 (1988) citing to Larson, The Law of Workmen’s Compensation, § 61.21), rehabilitation services undoubtedly include situations where “qualified case managers” contact a treating physician for the purpose of assessing, planning, implementing and evaluating the options and services required to effect a cure or provide relief.

In addition, the Board has no authority to limit an injured worker’s right to merely referring a violation of SBWC Rule 200.2 to the Rehabilitation Division for peer review as contemplated by Rule 200.1 (IV) since this impermissibly limits an injured worker’s right to appeal invalidity of the Rule.

In advocating against SBWC 200.2 in its entirety, I do not wish to see case management entirely abolished in all cases.  Rehabilitation services should merely be restored (as required under the law) to being the right of the injured worker to exercise in situations where rehab services may be beneficial.  The legislature seems to have recognized in O.C.G.A. §34-9-200.1(h) that for rehabilitation services including case management to be useful, you must have willing participants.  And when you see a case manager whose objective is simply to return an injured worker to employment (regardless of the lack of improvement in their physical condition and regardless of how humiliating the “earthquake watch job” is) without successfully facilitating the efficient delivery of healthcare services to help make the injured well, I do not see that case management helps to truly rehabilitate.  Under these circumstances, it simply further poisons an already toxic system.  And SBWC 200.2 is another example of how the rights of injured workers are being eroded, and without legal authority to do so under the law.

 

– David May

 

[1] In Jackson v. Peachtree Housing Division of C.O. Smith Industries et al.,  187 Ga.App. 612, 371 S.E.2d 112 (1988), the Georgia Court of Appeals held “Rehabilitation services” means many things. Generally speaking, the term is applied to both medical rehabilitation services and vocational rehabilitation services. More particularly, it embodies medical treatment, vocational evaluation and counseling, psychological evaluation, job planning, job placement and additional training. See generally Rule 200.1 of the Rules & Regulations of the State Board of Workers’ Compensation; Ranger Ins. Co. v. Speck, 145 Ga.App. 327, 328(2), 243 S.E.2d 593.