This Court granted certiorari to the Court of Appeals in Selective HR Solutions v. Mulligan, 305 Ga. App. 147 699 SE2d 119 2010, to consider whether the Court of Appeals erred in concluding that the State Board of Workers’ Compensation “Board” exceeded its authority in promulgating its Rule 205.1 For the reasons which follow, we conclude that formulation of Rule 205 was not outside the authority of the Board, but nevertheless, that the judgment of the Court of Appeals is properly affirmed. The evidence as outlined by the Court of Appeals was the following. Mulligan injured her back in September 2005 while she was at work at her place of employment. She received treatment pursuant to the workers’ compensation system, including lumbar surgery by an authorized treating physician “ATP”, and recovered sufficiently to return to work in July 2006. In May 2007, Mulligan fell at home and re-injured her back; she went to a private primary care physician, complaining of foot and back pain, explaining that she had fallen through her floor. She then sought a second opinion from an orthopaedist; she complained of low back pain which had developed gradually over several months. Mulligan submitted the bill to her husband’s group insurance. In August 2007, Mulligan saw yet another physician and reported that the symptoms of her 2005 injury had totally disappeared but then recurred “for whatever reason” two months earlier. Mulligan returned to the ATP, who after treating Mulligan for pain, ordering a MRI, and consulting with Mulligan, concluded that another lumbar surgery was required and on October 26, 2007, sent Board Form WC-205 to Mulligan’s insurer/employer, Selective HR Solutions, Inc. “Selective”, requesting pre-authorization to proceed with the surgery pursuant to Board Rule 205. On December 7, 2007, Selective faxed a note to the ATP stating that it would not authorize the procedure, and on December 11, 2007, returned Form WC-205, refusing to authorize the requested surgery without a second opinion. Nevertheless, the ATP operated on Mulligan three days later, and Selective refused to pay for the surgery.
On June 16, 2008, an administrative law judge “ALJ” denied Mulligan’s claim for additional benefits, finding that she had not shown either a change in condition regarding her September 2005 injury or that her December 2007 surgery was compensable, in that she failed to show that such medical treatment was rendered for the September 2005 work injury rather than for an intervening traumatic injury.2 The Board adopted the award of the ALJ on September 24, 2008. On January 9, 2009, the superior court entered an order which affirmed the finding that Mulligan had not sustained a change in condition, but reversed the Board award insofar as it denied Mulligan’s claim for medical expenses with respect to her second surgery in December 2007. It did so based upon its determination that the insurer had lost its ability to controvert the claim because it did not timely respond to the ATP’s WC-205 Form, i.e., that it was in violation of Rule 205, and thus, was required to pay for the expenses of the surgery regardless of whether the injury necessitating the surgery was compensable. Mulligan appealed the adverse ruling regarding the change in condition and Selective appealed the unfavorable ruling with regard to Rule 205 to the Court of Appeals.
