Barnes v. City of Atlanta Police Department

Andrews, Judge.

Barnes suffered a compensable injury and resulting medical expenses while working as a City of Atlanta police officer. Pursuant to his claim for workers’ compensation benefits, the administrative law judge awarded medical benefits and the Appellate Division of the State Board of Workers’ Compensation adopted the award. We granted Barnes’ application for a discretionary appeal from the order of the Superior Court reversing the decision of the Appellate Division.

After the City initially controverted the compensability of Barnes’ claim, it filed a WC-2 form with the Board on May 21, 1992 accepting the claim as compensable. Thereafter, the City did not controvert the compensability of the claim but only controverted payment for medical treatment it claimed was rendered by medical practitioners other than the authorized treating physician. See Nu Skin Intl. v. Baxter, 211 Ga. App. 32, 33 (438 SE2d 130) (1993). The City and Barnes entered into a stipulation on July 15, 1992 that Dr. Len-hart was the selected authorized treating physician. Barnes claims the stipulation contemplated that Dr. Kim, the partner of Dr. Lenhart, was also selected as an authorized treating physician.

At issue in this case is the City’s claim that medical treatment given after the stipulation by numerous medical practitioners pursuant to referrals made by Dr. Lenhart, Dr. Kim, and others was unauthorized under the provisions of OCGA §§ 34-9-200 and 34-9-201 re*140quiring Board approval for a change of physician or treatment. In Lee Fabricators v. Cook, 203 Ga. App. 450, 451 (417 SE2d 35) (1992), and Brown v. Transamerica IMS, 200 Ga. App. 272, 273-275 (407 SE2d 430) (1991), we concluded that, despite language in OCGA § 34-9-201 (c) authorizing referrals for other medical treatment by the authorized treating physician, the exclusive method for obtaining a change from the authorized treating physician or a change in treatment, including any change made by a referral from the authorized treating physician, was by Board approval pursuant to the provisions of OCGA §§ 34-9-200 (b) and 34-9-201 (d). Since Barnes admitted he did not obtain Board approval for a change in physician or treatment, the City’s position was that it is only responsible for the authorized treatment rendered by Dr. Lenhart.

Relying on Capital Atlanta v. Carroll, 213 Ga. App. 214 (444 SE2d 592) (1994), the ALJ and the Appellate Division of the Board found that, because the City initially controverted the compensability of the claim, the provisions of OCGA §§ 34-9-200 and 34-9-201 requiring Board approval for a change in physician or treatment did not apply. On appeal, the superior court concluded Capital Atlanta, supra, did not apply in this case because the City rescinded its original notice controverting the compensability of the claim and at the time of the contested medical treatments had agreed to pay all income and authorized medical benefits. Accordingly, the superior court reversed the Appellate Division of the Board and remanded the case for consideration of the evidence under the requirements of OCGA §§ 34-9-200 and 34-9-201.

In Capital Atlanta, supra, we found Board approval for a referral by a physician on the employer’s panel of approved physicians was not required because the employer had controverted the compensability of the claim at the time of the referral. Thus, at the time of the referral in Capital Atlanta, the employer was controverting the entire claim and refusing to pay any medical benefits. We concluded that “when the employer refuses to pay medical benefits and that refusal is later deemed unfounded, the employer cannot rely on the claimant’s failure to comply with the [provisions of OCGA §§ 34-9-200 and 34-9-201 requiring Board approval for a change in physician by referral] to deny liability for claimant’s medical expenses.” Id. at 216-217; compare Wright v. Overnite Transp. Co., 214 Ga. App. 822, 823 (449 SE2d 167) (1994) (where claimant changes physicians at a time when the employer is providing medical benefits, the provisions of OCGA §§ 34-9-200 and 34-9-201 requiring Board approval do apply). Since the City had accepted the compensability of the claim and was providing medical benefits at the time the medical treatments at issue were provided, the superior court correctly determined Capital Atlanta, supra, did not apply under the present facts. Wright, supra *141at 823.

However, the amended version of OCGA § 34-9-201, effective July 1, 1994, now specifically provides that the selected primary authorized treating physician may arrange for referrals to other medical practitioners without prior authorization from the Board. The amended version, however, does not allow other medical practitioners to whom the employee is referred to arrange for additional referrals. Thus, an additional issue is whether the amended version of OCGA § 34-9-201, which did not become effective until after the ALJ issued his decision, should be applied retroactively.

“Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. [Cits.] On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. [Cits.]” Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988). Retroactive effect is also given to statutes affecting the remedy only rather than the right to which the remedy attaches. Glover v. Colbert, 210 Ga. App. 666, 668 (437 SE2d 363) (1993). The legislature did not express an intention as to whether or not the statute should be given retroactive effect. In order to decide whether the statute should be given prospective or retrospective effect, the statute must be examined to determine whether it is substantive in nature or has a procedural or remedial nature. The statutory requirement that Board approval be sought for a change in physician or treatment deals not with the compensability of the claim but with the scope of the remedy. “[T]he statutory amendment under consideration here would not render compensable an injury which would not otherwise be compensable but would, at most, merely expand the scope of treatment required to be provided for an injury the compensability of which is not in question.” Thompson v. Wilbert Vault Co., 178 Ga. App. 489, 491 (343 SE2d 515) (1986). Since the statutory amendment at issue is remedial, it should be given retroactive effect.

Although the amended statute provides that the selected primary authorized treating physician may make referrals without Board approval, it further provides that medical practitioners to whom the employee is referred by a primary authorized treating physician shall not be permitted to arrange for any additional referrals. OCGA § 34-9-201 (b) (1), (2). The record in this case contains evidence that the contested medical treatments included treatments where Barnes was referred by Dr. Lenhart to Dr. Kim, by Dr. Lenhart or Dr. Kim to other medical practitioners, and by those practitioners to still others. Because of its erroneous conclusion that the provisions of OCGA §§ 34-9-200 and 34-9-201 did not apply, the Board did not consider the application of the statutory requirements to this evidence, nor did it *142consider Barnes’ claim that the stipulation of Dr. Lenhart as the selected authorized treating physician contemplated that his partner, Dr. Kim, was also included in the selection. Since the superior court correctly reversed the decision of the Board’s Appellate Division, although not for all the reasons discussed herein, the judgment of the superior court is affirmed and the case is remanded to the superior court with directions that the case be recommitted to the Board for consideration in accordance with this opinion.

Judgment affirmed and case remanded with directions.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., concurring specially in part and dissenting in part.