Construction Employers Must Post Physician Panels Prominently, Not Just Accessibly, Court Rules

The nature of construction work presents an inherent risk of workplace injuries. Under Georgia workers’ compensation law, an employer can maintain some control over an injured employee’s medical treatment by maintaining a valid panel of physicians — a list of at least six physicians who are reasonably accessible to employees. Georgia law also requires employers to post the panel of physicians in prominent places on the business's premises.

For employers operating traditional workplaces, compliance with the posting requirements may be relatively straightforward. Employers in the construction industry, however, face a different challenge. Jobsites may be temporary or constantly changing, and sometimes they do not even have walls on which to post the panel of physicians. Various trades may also work at the same jobsite, each with its own panel of physicians. The Georgia Court of Appeals recently addressed this issue in McCray v. United Electric Company/Amerisure Mutual Insurance Company.

Facts of the McCray Case

In McCray, the injured worker was an electrician who performed electrical work at a newly constructed medical clinic when a two- to three-pound air diffuser fell from the ceiling and struck his shoulder. The employer's foreman presented its panel of physicians to the employee following the accident and also provided medical treatment. Later, the employee nevertheless sought treatment with a different physician and also requested income benefits. Among other things, the attorney for the injured worker argued the employer's panel of physicians had not been properly posted at the jobsite and therefore was invalid.

In this case, the employer maintained the panel of physicians at the construction site and placed a copy of the panel inside the lid of a "gang box" — a large toolbox used at the jobsite. Employees met around the gang box each day, and the employer testified each gang box contained a laminated panel of physicians.

The details of the posting, however, proved important. The panel of physicians was located on the back side of the sheet inside the lid of the gang box. Therefore, even if the lid was open, the panel of physicians still was not visible. The gang box was also locked during the workday sometimes .

The employer explained the practical reasons for using the gang box. Construction sites may not yet have walls or other permanent locations for posting the panel of physicians. In addition, numerous construction companies and various trades often work at the same jobsite, all at the same time, each with its own panel of physicians. Posting multiple panels of physicians in a common area on the project site could potentially create confusion about which panel of physicians applies to which construction worker.

The Lower Courts’ Decisions 

The workers' compensation administrative law judge found taping the panel to the gang box lid was a valid posting and a reasonable place for posting at a construction site. Of note, the employer also maintained a posted panel of physicians at its corporate office. The judge also noted that after the accident, the employer's foreman located the panel and showed it to the injured worker. The Appellate Division of the State Board of Workers' Compensation and superior court both agreed with the administrative law judge. The Georgia Court of Appeals, however, took a different position. 

'Accessible' Does Not Necessarily Mean 'Prominent'

The key issue before the Court of Appeals was whether the panel was posted in a "prominent place" as required by law. The court relied heavily on its earlier decision in Lilienthal v. JLK, Inc., in which the court noted that Georgia’s workers' compensation statute does not define "prominent." Considering the ordinary meaning, the court focused on whether something is readily noticeable, conspicuous or situated to catch a person's attention and concluded that "accessible" is not the same as "prominent."

In McCray, the Court of Appeals noted that neither the administrative law judge nor the Appellate Division addressed the fact that the panel could not be seen when the gang box lid was open and therefore whether the posting was prominent, conspicuous or immediately noticeable. Importantly, the Court of Appeals did not necessarily say posting a panel of physicians on the inside of a gang box is automatically invalid. Instead, the court reversed the judgment and remanded the case back to the lower courts for the State Board to determine if this particular posting was in a prominent place per Georgia statute and Lilienthal.

Why This Matters to Construction Employers

The consequences of an improper panel posting can be significant for construction employers in Georgia. If an employer does not properly post the panel of physicians, the injured worker may be entitled to treatment by any physician of their choice — at the employer's expense.

Therefore, an employer may have a valid panel of physicians and may even provide that list to an employee immediately after a work accident (as in this case) yet still face a legal challenge if the panel of physicians was not properly posted prior to the occurrence of the work injury.

This creates a particular concern in the construction industry. Unlike employees working in offices, factories or warehouses, construction employees may rotate among temporary jobsites and may rarely, if ever, visit the employer's corporate office. Of course, the physical layout of a jobsite can also change dramatically as the construction project progresses. Therefore, the McCray case raises a question of what constitutes the employer's "business premises" when its employees perform their work at temporary jobsites and evolving construction sites. However, the Court of Appeals did not specifically define "business premises." Until the State Board provides further guidance in this case — or additional laws address the issue — construction employers should take a conservative approach.

Practical Steps for Construction Employers

For now, construction employers should consider posting the panel of physicians at every active jobsite, whether the project is temporary, rotating or long-term. The panel should be placed where employees will noticeably see it — not simply somewhere accessible. One creative solution suggested by the Court of Appeals at the oral arguments in McCray is whether construction employers could use a "doc box" to display the panel at sites where permanent walls have not yet been constructed.

Employers should also consider several additional safeguards:

• Post the panel in highly visible areas the workers regularly encounter, such as near time clocks, sign-in stations, bulletin boards, break areas, safety trailers or other established gathering points.
• If a gang box is used, place the panel where it remains plainly visible, rather than face down, underneath a lid or on the back side of another document.
• Identify the employer's name clearly on the panel, particularly on jobsites with multiple construction employers.
• Explain the purpose of the panel and the employee's right to select a physician during orientation and reinforce the information during safety meetings.
• Periodically inspect jobsites to confirm the panel remains posted and visible as the brick-and-mortar configuration of the project evolves.
• Immediately provide the panel to an injured worker after any reported workplace injury and assist the employee with selecting a physician.

Takeaways

The McCray case suggests that having a panel of physicians at a jobsite and in an accessible location may not be enough — the panel must be posted prominently” and where employees are likely to notice it.

Until Georgia's appellate courts or the State Board of Workers' Compensation provides additional guidance, construction employers should treat the panel of physicians’ posting requirements as part of their ongoing jobsite safety and workers’ compensation procedures. A few minutes spent confirming a panel is prominently posted at each jobsite — and posted in multiple places — may preserve the employer's ability to maintain control of medical care after a work injury occurs.