Mulligan v. SELECTIVE HR SOLUTIONS, INC.
716 S.E.2d 150
Ga.2011Background
- Mulligan injured her back at work in September 2005; treated under the workers' compensation system and underwent lumbar surgery by an ATP.
- She returned to work July 2006; in May 2007 she re-injured her back after a home fall and sought medical care.
- In December 2007 Mulligan's ATP sought pre-authorization for a second lumbar surgery under Board Rule 205; insurer refused to authorize without a second opinion.
- The ATP proceeded with the surgery on December 10, 2007; the insurer refused to pay, arguing lack of compensable injury.
- ALJ denied Mulligan's claim for a change in condition and the Board adopted; the superior court affirmed in part and reversed on medical expenses.
- Court of Appeals reversed the Rule 205 ruling; Supreme Court held Rule 205 within Board authority but affirmed the Court of Appeals on the Rule 205 issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Rule 205 within the Board's authority? | Mulligan argued Rule 205 exceeds authority. | Selective argued Rule 205 is a valid Board rule. | Rule 205 is within Board authority. |
| Does Rule 205 burden or shift proof between parties? | Rule 205 shifts burden to employee to prove work-relatedness. | Rule 205 governs pre-authorization, not substantive proof. | Rule 205 is not a burdensome or substantive shift. |
| Did Mulligan sustain a change in condition of the 2005 injury? | She seeks further benefits for the December 2007 surgery. | No change in condition supported; surgery not proven for the 2005 injury. | Evidence supports no change in condition; Mulligan's claim on that issue fails. |
| Does failure to timely respond to WC-205 trigger automatic payment? | Untimely response obligates payment regardless of compensability. | Untimely response does not nullify the need to prove compensability. | Rule 205 not burden-shifting; payment tied to compensable injury. |
Key Cases Cited
- MARTA v. Reid, 282 Ga.App. 877, 640 S.E.2d 300 (Ga. Ct. App. 2006) (Board rules must comport with statute and not enlarge substantive rights)
- HCA Health Svcs. of Ga. v. Roach, 265 Ga. 501, 458 S.E.2d 118 (Ga. 1995) (courts assess agency rules against legislative authorization)
- North Fulton Med. Ctr. v. State Health Planning Agency, 233 Ga.App. 28, 503 S.E.2d 47 (Ga. Ct. App. 1998) (consider rulings in full context of statutory framework)
- Collie Concessions, Inc. v. Bruce, 272 Ga.App. 578, 612 S.E.2d 900 (Ga. Ct. App. 2005) (injury must be compensable to trigger obligations under act)