MCCRAY v. UNITED ELECTRIC COMPANY AMERISURE MUTUAL INSURANCE COMPANY (2026)

Kimberly Hardy McCray, executor of the estate of Curtis Thomas, appeals from the superior court order affirming the denial of Thomas’ workers’ compensation claim.¹ Because the denial of Thomas’ claim was premised on an erroneous legal theory that failed to make the required finding that Thomas’ employer had posted a panel of physicians in a prominent place as required by OCGA § 34-9-201 (c), we reverse and remand with direction.²

1. Facts and procedural posture

Thomas was allegedly injured while completing electrical work at a newly constructed medical clinic when an air diffuser fell from the ceiling and struck him on the shoulder. Thomas filed a workers’ compensation claim seeking authorization for medical treatment from a doctor who was not listed on the employer's panel of physicians, temporary total disability benefits, and attorney fees. The claim was contested by the employer, United Electric Company, and the insurer, Amerisure Insurance Company.

At the evidentiary hearing held before an administrative law judge (“ALJ”), Thomas argued that because United Electric had not posted a panel of physicians in a prominent place at the job site as required by OCGA § 34-9-201 (c), he had the right to select any physician. The ALJ rejected the argument, finding that the evidence showed that a laminated panel of physicians had been taped inside the lid of a gang box, a large tool box, located at the job site. The ALJ concluded that “taping the panel to the lid of the gang box was a valid posting by the employer” and that the panel “was properly posted at the construction site.” The ALJ then went on to find that a doctor from the employer's panel of physicians was Thomas’ authorized treating physician, instead of a non-panel doctor whom Thomas had used for treatment. Based on the panel doctor's testimony and other evidence, the ALJ denied Thomas’ claim for benefits.

Thomas appealed to the Appellate Division of the State Board of Workers’ Compensation (“the Board”), which adopted the factual findings and legal conclusions of the ALJ, expressly “agree[ing] with the administrative law judge that taping the panel to the lid of the gang box was a valid manner and a reasonable place to post the panel of physicians at [the] construction site.” Thomas appealed to the superior court, which summarily affirmed the Board's decision. We granted Thomas’ application for discretionary review, and this appeal followed.

2. OCGA § 34-9-201 (c)

Thomas asserts that the superior court erred in affirming the Board's decision because the finding that the employer had posted a panel of physicians as required by OCGA § 34-9-201 (c) was erroneous. We agree.

OCGA § 34-9-200 (a) requires an employer to furnish the injured employee with medical treatment that is reasonably required, and OCGA § 34-9-201 (b) (1) allows the employer to satisfy that requirement by maintaining a list of six physicians from which an employee may accept services. Under OCGA § 34-9-201 (c), an employer is required to post a panel of physicians in a prominent place and ensure that employees understand the function of the panel and their right to choose a doctor from that list in the event of an on-the-job injury. If the employer fails to provide any of the procedures for selection of physicians as set forth in OCGA § 34-9-201 (c), an employee may select any physician to render service at the expense of the employer. OCGA § 34-9-201 (f).

Brasher v. US Xpress Enters., 328 Ga. App. 20, 23-24 (1), 761 S.E.2d 448 (2014) (emphasis supplied).

In Lilienthal v. JLK, Inc., 367 Ga. App. 721, 888 S.E.2d 310 (2023), which involved the posting of a panel of physicians inside a locked resource room in a school's main corridor, this court construed OCGA § 34-9-201 (c)’s requirement that “the employer shall post the Panel of Physicians ․ in prominent places upon the business premises[.]” The Lilienthal court noted that “Georgia's workers’ compensation statute does not define what is meant by the phrase ‘prominent places[.]’ ” Lilienthal, supra at 725, 888 S.E.2d 310. So in construing the statutory language, this court assigned the word “prominent” its ordinary meaning of “standing out or projecting beyond a surface or line, readily noticeable; conspicuous, immediately noticeable and situated so as to catch the attention; noticeable.” Id. (citations and punctuation omitted). The Lilienthal court further explained that “[t]he fact that a panel [of physicians] is located in a technically accessible location does not mean that it is posted in a prominent, conspicuous, or easily seen location.” Id. at 726, 888 S.E.2d 310 (punctuation omitted). The court held that the ALJ in that case, in finding that posting the panel of physicians in the locked resource room satisfied OCGA § 34-9-201 (c), had “erred by conflating the concept of accessibility with prominence.” Id. at 726, 888 S.E.2d 310.

In the instant case, the ALJ expressly found the testimony of the employer's assistant project manager and job foreman to be credible and relied on their testimony to support the findings that “taping the panel [of physicians] to the lid of the gang box was a valid posting by the employer” and that Thomas “was shown a valid panel of physicians by the employer[.]” The ALJ cited the project manager's testimony that a gang box containing tools is located at every job site; that employee meetings are held around the gang box; and that a laminated panel of physicians is taped inside the lid of the gang box. The ALJ also cited the foreman's testimony that when Thomas reported the injury to his shoulder, the foreman telephoned the assistant project manager to determine the location of the panel of physicians; the assistant project manager told him it was taped to the lid of the gang box; and the foreman then located the panel taped inside the lid of the gang box and showed it to Thomas.

A review of the foreman's testimony, upon which the ALJ relied, reveals the following additional detailed testimony about the placement of the panel of physicians in the gang box: the gang box is a large tool box that is locked at night and sometimes during the day; the panel of physicians was located on the back side of a laminated piece of paper inside the lid of the gang box; if the lid was opened, a person would not be able to see the panel; the foreman did not know the panel was located inside the gang box and had never seen it until he called the assistant project manager, who directed him to it; and after locating the laminated sheet inside the box, he had to turn it over to find the panel.

In her decision, the ALJ did not address such detailed testimony concerning the panel; did not cite OCGA § 34-9-201 (c) or Lilienthal, or make any reference to the statutory requirement that the panel be posted in a prominent place; and made no findings that the panel was posted in a prominent, conspicuous, or easily seen location. Rather, as noted above, the ALJ simply concluded that the panel was properly posted at the job site. The Board, unlike the ALJ, did cite OCGA § 34-9-201 (c) and Lilienthal, but made no separate findings, and instead fully adopted the ALJ's findings of fact and conclusions of law, while expressly agreeing with the ALJ that taping the panel to the lid of the gang box was valid and reasonable. So neither the ALJ nor the Board addressed the evidence that the panel could not be seen when the gang box lid was open and neither made a finding as to whether taping a panel to the underside of the lid of a sometimes-locked box was prominent, conspicuous, or immediately noticeable within the meaning of OCGA § 34-9-201 (c) and Lilienthal.

Based on the foregoing, we conclude that the ALJ and Board erred by failing to consider or make necessary findings regarding the controlling statutory requirement that the panel be posted in a prominent place. As in Lilienthal, the ALJ improperly relied on the concept of accessibility to the panel rather than determining that the employer had posted the panel in a prominent place as required by OCGA § 34-9-201 (c). Likewise, the Board erred in fully adopting the ALJ's factual findings and legal conclusions as sufficient grounds for affirming the ALJ's decision.

We note that United Electric and Amerisure argue that United Electric posted the panel of physicians in a prominent place as required by OCGA § 34-9-201 (c) by posting it on a bulletin board at their corporate office located 49 miles away from the job site where the incident occurred. But this issue was not ruled on by the ALJ, the Board, or the superior court. Rather, as discussed above, the sole basis for their respective decisions was that taping the panel inside the lid of the gang box at the work site was proper. Without the benefit of factual findings and legal conclusions concerning the posting of the panel at the corporate office, we will not rule on such an issue in the first instance.³ See Tussahaw Reserves v. Butts County, 323 Ga. 84, 88 (2), 922 S.E.2d 363 (2025) (“Because the superior court (and the [Board and ALJ]) did not distinctly rule on this issue, we do not consider it in this appeal.”); Wasserman v. Franklin County, 320 Ga. 624, 653 (III) (B), 911 S.E.2d 583 (2025) (“We are a court of review, not of first view.”); Wallace v. Wallace, 301 Ga. 195, 198-200(II), 800 S.E.2d 303 (2017) (declining to make findings of fact and conclusions of law in the first instance).

An ALJ's decision based on erroneous theories of law [is] subject to the de novo standard of review by this [c]ourt. Because it affirmatively appears that the Board's decision is based upon an erroneous legal theory [adopted from the ALJ's decision], and that for this reason the Board has not considered all the evidence in the light of correct and applicable legal principles, the judgment of the superior court affirming the decision of the Board is reversed with direction that the case be remanded to the Board for action in accordance with what is stated in this opinion.

Lilienthal, supra at 726, 888 S.E.2d 310 (citations and punctuation omitted).

3. Any evidence standard of review

Thomas enumerates that the superior court erred in its application of the any evidence standard to its review of the Board's decision because of purported conflicts in the medical opinion evidence from the panel doctor. But “[a]s a reviewing court, the superior court applies an any evidence standard of review to the Board's findings of fact, construing the evidence in the light most favorable to the party prevailing before the Board, and lacks authority to substitute itself as a factfinding body in lieu of the Board.” Lilienthal, supra at 721, 888 S.E.2d 310 (citations and punctuation omitted). Moreover, “[i]t is within the province of the ․ Board to determine the weight and credit to be given to the testimony of the witnesses, including the opinion testimony of physician witnesses, and to resolve issues of fact arising from conflicts in the evidence.” Hughston Orthopedic Hosp. v. Wilson, 306 Ga. App. 893, 896 (1), 703 S.E.2d 17 (2010) (citation and punctuation omitted). This enumeration is without merit. Nevertheless, given our holding above that the Board's decision was based on an erroneous legal theory adopted from the ALJ, we reiterate that on remand the Board must “consider[ ] all the evidence in the light of correct and applicable legal principles[.]” Lilienthal, supra at 726, 888 S.E.2d 310 (citations and punctuation omitted).

Judgment reversed and case remanded with direction.

FOOTNOTES

1.   The appeal was initially filed by Thomas, but McCray was substituted as the appellant after Thomas’ death.

2.   Oral argument was held on December 16, 2025, and is archived on our court website. See Court of Appeals of the State of Georgia, Oral Argument, Case No. A26A0115 (Dec. 16, 2025), available at https://vimeo.com/1148066166.

3.   At 4:57 PM on the evening before oral argument, the Georgia Workers’ Compensation Association and three other organizations filed a motion for leave to file a 53-page amicus curiae brief raising this issue, seconding and expanding upon the appellee's arguments, and making policy arguments that are more appropriately addressed by the legislature. The motion is denied.

McFadden, Presiding Judge.

Watkins and Padgett, JJ., concur.