Workers’ Compensation Case Law Update: “In Prominent Places”

Maintaining a Panel of Physicians in compliance with O.C.G.A. § 34-9-201 is among the most important steps an Employer/Insurer can take to mitigate their workers’ compensation claim exposure in Georgia. Strict compliance with the entire statute is required, but the reward for doing so is maintaining control over authorized medical treatment. If one of the requirements is not met, however, employees are not bound by the panel and are entitled to designate the authorized treating physician (“ATP”) of their choosing.

Statute 

O.C.G.A. § 34-9-201 provides the following:

Requirements: 
(b)(1)… a list of at least six physicians or professional associations or corporations of physicians who are reasonably accessible to the employees…at least one of the physicians shall practice the specialty of orthopedic surgery… not more than two industrial clinics shall be included on the panel…. 

(c)… the employer shall post the Panel of Physicians… in prominent places upon the business premises and otherwise take all reasonable measures to ensure that employees: 

1. Understand the function of the panel or managed care organization procedures and the employee’s right to select a physician therefrom in case of injury; and 
2. Are given appropriate assistance in contacting panel or managed care organization members when necessary. 

Consequence for Failure to Comply: 

(f) If the employer fails to provide any of the procedures for selection of physicians as set forth in subsection (c)… an employee may select any physician to renders service at the expense of the employer.  

Recent Georgia Court of Appeals Cases (2023 and 2026) 
In the past three years, there have been two Georgia Court of Appeals cases addressing the requirement that the Panel be posted “in prominent places upon the business premises.”

The first of these two cases is Lilienthal v. JLK, Inc..1There, the Employer was a preschool and the Panel of Physicians was posted in a resource closet in the school’s main corridor. Unless it was being used, the resource room remained locked at all times, the lights were kept off, and the only key was located a separate administrative room. Further, the employee testified she rarely used the room because she did not need the supplies and materials contained inside for her classroom.

This claim went to a hearing after the employee sought a change of physician to a non-panel-provider, alleging the Employer failed to post a copy of the panel of physicians in “prominent places upon the business premises.” At the trial level, the ALJ denied the employee’s request for a change of physician, reasoning that the employee still had “access” to the panel, even though it was posted in a locked room with the key kept in another room. The ALJ further reasoned that even though there were “better” places to post the panel in the Employer’s building, posting it in the resource room was still sufficient to satisfy O.C.G.A. § 34-9-201. This Award was adopted by the Appellate Division of the State Board of Workers’ Compensation and affirmed by the Superior Court on Appeal.

The Georgia Court of Appeals, however, reversed and remanded the claim to the Board after finding that the Board and State Board reached their decisions based on an erroneous legal theory. In reaching this decision, the Court of Appeals noted that “prominence,” rather than “accessibility,” was the standard under O.C.G.A. § 34-9-201(c) and that the ALJ had erroneous conflated those two concepts. They further explained that the fact that the panel was “technically accessible” to the employee does not mean that it was posted in a “prominent location.” To better distinguish the concepts, the Court observed that while the Georgia Workers’ Compensation Act does not define “prominent places,” the plain and ordinary meaning of that phrase is “standing out or projecting beyond a surface or line, readily noticeable; conspicuous,” “immediately noticeable” and “situated so as to catch the attention; noticeable.”2 Since no analysis as to the “prominence” of the panel posting was conducted, and the ALJ only held that the panel of physicians was “accessible,” the Court of Appeals reversed and remanded the claim back to the Board.

The second case, McCray v. United Electric Company/Amerisure Mutual Insurance Company,3 also involved an employee seeking authorization of treatment with a non-panel doctor based on the theory that the Employer did not post the panel of physicians in a “prominent place.” The Employer here was a company completing electrical work at a newly constructed medical clinic. The Employer had a laminated panel of physicians taped to the inside lid of a large toolbox located at the job site. At the hearing, the assistant project manager provided credible testimony that this particular type of toolbox is located at all of the Employer’s remote job sites, that employee meetings are held around these toolboxes, that laminated panels are taped inside the lids of all of these toolboxes, and that following the employee’s report of injury, the foreman took the employee to the toolbox and showed him the panel of physicians. Additional evidence, however, showed that the foreman had to call the assistant project manager to ask where the panel was, the panel was on the flip side of the laminated paper such that it had to be removed and turned over in order to be seen, and that the toolbox was locked at night and sometimes during the day. 

At the trial level, the ALJ concluded that taping the panel to the inside lid of the box was a “valid” and “proper” posting, and in doing so, denied the employee’s request for authorization of a non-panel physician. The Appellate Division adopted the ALJ’s Award and expressly agreed that taping the panel to the lid of the toolbox was a “valid manner” and “reasonable place” to post a panel at a construction site. The Superior Court affirmed the Award of the full Board. On appeal, however, the Georgia Court of Appeals once again reversed and remanded the case back to the Board finding that the Award was based on an erroneous legal theory. As in Lilinthal, the Court of Appeals found the Board failed to make necessary finding as to whether “taping a panel flipped over on the inside of a toolbox that was sometimes locked” constituted a posting that was “prominent, conspicuous, or immediately noticeable” within the meaning of O.C.G.A. § 34-9-201(c) and Lilienthal.

Takeaways 

These two cases underscore the importance of strict compliance with every requirement of O.C.G.A. § 34-9-201. As demonstrated in McCray, even when a panel contains the required number of physicians and is presented to the employee after a reported injury for selection of the initial ATP, the employee may still gain control of medical treatment if the panel was not posted in a prominent location. To minimize this risk, Employers should ensure that the panel is displayed in a manner that is “standing out or projecting beyond a surface or line, readily noticeable; conspicuous,” “immediately noticeable,” and “situated so as to catch the attention; noticeable.” In other words, the panel should be posted in a high-traffic area where it is clearly visible, unobstructed, and undeniably noticeable to employees.