O.C.G.A. § 34-9-108 (2019)

Annotations

Editor’s notes. - Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013. Law reviews. - For article discussing attorney fees in workers’ compensation claims, see 14 Ga. St. B. J. 187 (1978). For annual survey of workers’ compensation, see 38 Mercer L. Rev. 431 (1986). For article, ‘‘Workers’ Compensation,’’ see 53 Mercer L. Rev. 521 (2001). For survey article on workers’ compensation law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003).

For annual survey of workers’ compensation law, see 57 Mercer L. Rev. 419 (2005). For survey article on workers’ compensation law, see 60 Mercer L. Rev. 433 (2008). For article, ‘‘Evidence,’’ see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011). For annual survey on workers’ compensation law, see 66 Mercer L. Rev. 247 (2014). For annual survey of workers’ compensation, see 67 Mercer L. Rev. 287 (2015). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 285 (1992).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION EVIDENCE REASONABLE GROUNDS

General Consideration Board’s discretionary power to approve contract. - Power vested in the board to approve the contract entered into between the claimant and the attorney is a discretionary power; this discretion is not an arbitrary and unlimited one, but should be based on evidence, or the facts as disclosed by the record when the facts are sufficient for this purpose, and the law applicable thereto. Wilson v. Maryland Cas. Co., 71 Ga. App. 184, 30 S.E.2d 420 (1944). In construing contract of employment between a claimant under the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) and the claimant’s, provision that the attorney was to receive ‘‘one-third of any sum recovered’’ would be held to mean any sum actually received by the claimant, not one-third of any sum awarded by the board. Cain v. Tuten, 82 Ga. App. 102, 60 S.E.2d 485 (1950). Board hearing as to attorney’s fees. - When an attorney filed with the board for its approval the attorney’s contract for fees for services rendered a client in a proceeding under the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.), as required, and petitioned the board to grant the attorney a hearing so that the attorney might introduce evidence before the board to show the time and services expended by the attorney under the contract, it was error for the board to refuse the attorney a hearing, when it only approved the contract as to a portion of the amount provided for therein. Wilson v. Maryland Cas. Co., 71 Ga. App. 184, 30 S.E.2d 420 (1944). Amount of attorney’s fees as res judicata. - When the reasonableness and amount of attorney’s fees were submitted by an attorney to the department (now board), which after a hearing entered an order that the fees previously paid by the employee client constituted a reasonable amount, and that no further fee would be allowed, such a judgment, unappealed from, unless void under some settled rule of law relating to the validity of judgments, is res judicata, precluding the attorney from subsequently foreclosing and collecting under the attorney’s alleged lien upon an award of compensa-

tion by the department (now board) to the employee. Thomas v. Travelers Ins. Co., 53 Ga. App. 404, 185 S.E. 922 (1936). Board’s decision properly set aside. - Given the State Board of Workers’ Compensation’s finding that the employee was entitled to attorney fees pursuant to statute, and given the strong presumption in favor of the contract fee in the Board’s own rules, the trial court did not err in setting aside the decision of the Board and remanding the case to the Board for entry of a corrected award. Heritage Healthcare v. Ayers, 323 Ga. App. 172, 746 S.E.2d 744 (2013). Purpose of former Code 1933, § 114-712 (see now O.C.G.A. § 34-9-108) was to prevent the claimant from having to pay attorney’s fees to enforce claimant’s rights under former Code 1933, § 114-705 (see now O.C.G.A. § 34-9-221) when the employer failed to comply with the provisions thereof without reasonable grounds. Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576, 275 S.E.2d 152 (1980). Failure to comply with O.C.G.A. § 34-9-221 in suspending or terminating benefits does not prevent employer/insurer from contending that no or lesser benefits are due after a certain date due to a change in condition; rather, it subjects the employer/insurer to potential liability for attorney fees if the failure was without reasonable grounds. Sadie G. Mays Mem. Nursing Home v. Freeman, 163 Ga. App. 557, 295 S.E.2d 340 (1982). Application of § 34-9-363. - Language of O.C.G.A. § 34-9-363(b) does not serve to incorporate the terms of O.C.G.A. § 34-9-108(b)(1) so as to authorize an award of attorneys’ fees in a proceeding against the Subsequent Injury Trust Fund; reversing Muscogee Iron Works v. Ward, 216 Ga. App. 636, 455 S.E.2d 363 (1995). Georgia Subsequent Injury Trust Fund v. Muscogee Iron Works, 265 Ga. 790, 462 S.E.2d 367 (1995). Attorneys’ fees of an employer or insurer are not recoverable from the Subsequent Injury Trust Fund; reversing Muscogee Iron Works v. Ward, 216 Ga. App. 636, 455 S.E.2d 363 (1995). Georgia Subsequent Injury Trust Fund v. Muscogee Iron Works, 265 Ga. 790, 462 S.E.2d 367 (1995).

‘‘Compensation’’ under O.C.G.A. § 34-9-108(b)(3) includes penalties imposed for violations of O.C.G.A. § 34-9-221. Hardee’s v. Bailey, 180 Ga. App. 332, 349 S.E.2d 211 (1986). ‘‘Any evidence’’ rule. - Based on ample evidence that an employee performed work for the company and derived income therefrom while at the same time receiving temporary total disability benefits, an award of attorney’s fees to the employer’s insurer pursuant to O.C.G.A. § 34-9-108(b)(1), the assessment of a civil penalty against the employee pursuant to O.C.G.A. § 34-9-18(b), and the referral of the matter to the Enforcement Division of the Board pursuant to O.C.G.A. § 34-9-24 should have been affirmed by a trial court under the ‘‘any evidence’’ standard of review. Trax-Fax, Inc. v. Hobba, 277 Ga. App. 464, 627 S.E.2d 90 (2006). Finding of waiver erroneous. - Finding that the employee waived the issue of attorney fees in a workers’ compensation action was erroneous because the employee pled the claim and counsel argued the claim for attorney fees; thus, the employee’s conduct as reflected by the record failed to support the finding the employee waived the claim under O.C.G.A. §§ 34-9-108(b)(2) and 34-9-126(b). Cho v. Mt. Sweet Water, Inc., 322 Ga. App. 400, 745 S.E.2d 663 (2013). Failure to serve notice of lien on new counsel. - Because an attorney who represented a workers’ compensation claimant for eight years prior to new counsel taking over the case failed to serve a copy of Form WC-108b on claimant’s new counsel as required by Ga. Bd. Workers’ Comp. R. 108(e), the Appellate Division of the Board of Workers’ Compensation did not err in finding that the claimant’s lien for attorney’s fees was not perfected and the claimant was not entitled to attorney’s fees. Monk v. Parker, 331 Ga. App. 736, 771 S.E.2d 424 (2015). Cited in Camp v. United States Fid. & Guar. Co., 42 Ga. App. 653, 157 S.E. 209 (1931); Patterson v. Curtis Publishing Co., 58 Ga. App. 211, 198 S.E. 102 (1938); Dunn v. American Mut. Liab. Ins. Co., 64 Ga. App. 507, 13 S.E.2d 902 (1941); Maryland Cas. Co. v. Stephens, 76 Ga. App. 723, 47 S.E.2d 108 (1948); New Amster-

dam Cas. Co. v. Thompson, 100 Ga. App. 677, 112 S.E.2d 273 (1959); American Mut. Liab. Ins. Co. v. Quick, 106 Ga. App. 59, 126 S.E.2d 431 (1962); Employees Ins. Co. v. Amerson, 109 Ga. App. 275, 136 S.E.2d 12 (1964); United States Cas. Co. v. White, 111 Ga. App. 267, 141 S.E.2d 321 (1965); Baggett Transp. Co. v. Barnes, 113 Ga. App. 58, 147 S.E.2d 372 (1966); Commonwealth Ins. Co. v. Arnold, 114 Ga. App. 835, 152 S.E.2d 896 (1966); Magnus Metal Div. of Nat’l Lead Co. v. Stephens, 115 Ga. App. 432, 154 S.E.2d 869 (1967); Zurich Ins. Co. v. McDuffie, 117 Ga. App. 90, 159 S.E.2d 423 (1968); LaFavor v. Aetna Cas. & Sur. Co., 117 Ga. App. 873, 162 S.E.2d 311 (1968); Federated Ins. Group v. Pitts, 118 Ga. App. 356, 163 S.E.2d 841 (1968); Phoenix Ins. v. Weaver, 124 Ga. App. 423, 183 S.E.2d 920 (1971); Harris v. Atlanta Coca-Cola Bottling Co., 128 Ga. App. 193, 196 S.E.2d 159 (1973); Fleming v. Phoenix of Hartford Ins. Co., 130 Ga. App. 771, 204 S.E.2d 460 (1974); Handley v. Travelers Ins. Co., 131 Ga. App. 797, 207 S.E.2d 218 (1974); Commercial Union Ins. Co. v. Brock, 134 Ga. App. 903, 216 S.E.2d 700 (1975); Insurance Co. of N. Am. v. Puckett, 139 Ga. App. 772, 229 S.E.2d 550 (1976); United States Fid. & Guar. Co. v. Murray, 140 Ga. App. 708, 231 S.E.2d 502 (1976); Hartford Ins. Co. v. White, 142 Ga. App. 307, 235 S.E.2d 740 (1977); Roper Corp. v. Reynolds, 142 Ga. App. 402, 236 S.E.2d 103 (1977); State v. Purmort, 143 Ga. App. 269, 238 S.E.2d 268 (1977); S.S. Kresge Co. v. Black, 144 Ga. App. 58, 240 S.E.2d 554 (1977); Rucker v. Universal Mem. Co., 145 Ga. App. 724, 244 S.E.2d 584 (1978); S.S. Kresge Co. v. Driver, 147 Ga. App. 531, 249 S.E.2d 340 (1978); Employer’s Ins. Co. v. Brown, 147 Ga. App. 866, 250 S.E.2d 575 (1978); McGhee v. Kroger Co., 150 Ga. App. 291, 257 S.E.2d 361 (1979); Insurance Co. of N. Am. v. Henson, 150 Ga. App. 788, 258 S.E.2d 706 (1979); Union Carbide Corp. v. Coffman, 158 Ga. App. 360, 280 S.E.2d 140 (1981); Sunbelt Airlines v. Hunt, 158 Ga. App. 429, 280 S.E.2d 435 (1981); Seitzingers, Inc. v. Barnes, 161 Ga. App. 855, 289 S.E.2d 315 (1982); Raines & Milam v. Milam, 161 Ga. App. 860, 289 S.E.2d 785 (1982); Farist v. Blue Ridge Carpet Mills, 162 Ga. App. 586, 291

General Consideration (Cont’d) S.E.2d 741 (1982); West Point Pepperell v. Gordon, 163 Ga. App. 837, 296 S.E.2d 155 (1982); State v. Head, 163 Ga. App. 842, 296 S.E.2d 157 (1982); Kelley v. West Point Pepperell, Inc., 164 Ga. App. 187, 296 S.E.2d 191 (1982); Carroll v. Dan River Mills, Inc., 169 Ga. App. 558, 313 S.E.2d 741 (1984); Dycol, Inc. v. Crump, 169 Ga. App. 930, 315 S.E.2d 460 (1984); Southeastern Aluminum Recycling, Inc. v. Rayburn, 172 Ga. App. 648, 324 S.E.2d 194 (1984); Motor Convoy, Inc. v. Maddox, 172 Ga. App. 430, 323 S.E.2d 235 (1984); Cagle’s, Inc. v. Kitchens, 172 Ga. App. 698, 324 S.E.2d 550 (1984); Brazier v. Travelers Ins. Co., 602 F. Supp. 541 (N.D. Ga. 1984); Copelan v. Burrell, 174 Ga. App. 63, 329 S.E.2d 174 (1985); State v. Mitchell, 177 Ga. App. 333, 339 S.E.2d 384 (1985); Dykes v. Superior Elec. Contractors, 179 Ga. App. 793, 348 S.E.2d 120 (1986); Brigmond v. Springhill Homes, 180 Ga. App. 875, 350 S.E.2d 846 (1986); Desoto Falls, Inc. v. Brown, 187 Ga. App. 830, 371 S.E.2d 462 (1988); Scott v. Tremco, Inc., 199 Ga. App. 606, 405 S.E.2d 347 (1991); Capital Atlanta, Inc. v. Carroll, 213 Ga. App. 214, 444 S.E.2d 592 (1994); Doss v. Food Lion, Inc., 267 Ga. 312, 477 S.E.2d 577 (1996); Stewart v. Auto-Owners Ins. Co., 230 Ga. App. 265, 495 S.E.2d 882 (1998); S&B Eng’rs & Constructors Ltd. v. Bolden, 304 Ga. App. 534, 697 S.E.2d 260 (2010). Evidence Board may and should consider all evidence. - In making the determination of whether the matter has been defended without reasonable grounds the board may, consider the whole of the evidence, and should do so. Pacific Employers Ins. Co. v. Peck, 129 Ga. App. 439, 200 S.E.2d 151 (1973). Evidentiary support is required for award of fees. - The discretion of the board in allowing attorney’s fees under this section concerned the allowance of any amount whatsoever, and in order to authorize the award of a particular amount some evidence must be introduced in support thereof. United States

Cas. Co. v. White, 108 Ga. App. 539, 133 S.E.2d 439 (1963). When claimant sought an award of attorney’s fees because the claim was defended without reasonable grounds, but introduced no evidence as to the amount of reasonable attorney’s fees, an award of attorney’s fees in the amount of $1,000.00 was not authorized. United States Cas. Co. v. White, 108 Ga. App. 539, 133 S.E.2d 439 (1963). Cases prior to the 1978 amendment of this section still apply in that there must be supporting evidence introduced before an award of attorney’s fees can be entered. Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576, 275 S.E.2d 152 (1980). To authorize an award of attorney’s fees there must be evidence presented as to what is a reasonable value of the services which have been rendered by the attorney. Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576, 275 S.E.2d 152 (1980). Specific findings of fact. - When the finding relating to the assessment of attorney’s fees is silent as to whether or not the noncompliance with O.C.G.A. § 34-9-221 was without reasonable grounds, the findings do not support an award of attorney’s fees under O.C.G.A. § 34-9-108. Binswanger Glass Co. v. Brooks, 160 Ga. App. 701, 288 S.E.2d 61 (1981). Conclusion that an employer and its insurer acted ‘‘in whole or in part without reasonable grounds’’ must be supported by specific findings of fact. Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654, 350 S.E.2d 299 (1986). When employee injured the employee’s wrist during employment by employer, and employer discharged employee on March 13, 1987, but paid the employee no temporary total disability benefits until June 1987, nearly three months after the employee engaged an attorney to recover the benefits, the record established that there was some evidence to support the board’s award of attorney fees and since the appellate court and the superior court are bound to affirm the board if there is any evidence to support the award, the superior court’s order awarding attorney fees in favor of the employee was proper. Southwire Co. v. Crapse, 190 Ga. App. 383, 378 S.E.2d 742 (1989).

There was no error in the refusal to award attorney fees to an employee pursuant to O.C.G.A. § 34-9-108(b)(1) in a request for an increase in the weekly wage payments arising from a temporary total disability, as well as a request for reinstatement of benefits, as the employer reasonably defended on the issue of the wage increase because the employee’s claim regarding overtime payments was disputed and not clearly supported by the records, and the reinstatement was based on a claim of cooperation with continuing medical treatment, which was also a matter of debate. Dallas v. Flying J, Inc., 279 Ga. App. 786, 632 S.E.2d 389 (2006). Because the Appellate Division failed to make any substituted findings of fact, it was impossible to determine whether any evidence supported its conclusion that an administrative law judge had no discretion under O.C.G.A. § 34-9-108(b)(2) to assess attorney fees for a violation of O.C.G.A. § 34-9-221. J & D Trucking v. Martin, 310 Ga. App. 247, 712 S.E.2d 863 (2011). Reasonable Grounds Noncompliance with § 34-9-221 must have been without ‘‘reasonable grounds.’’ - When evidence presented reasonable grounds for defending the award, the insurer should not be punished with assessment of attorney’s fees. Pacific Employers Ins. Co. v. Peck, 129 Ga. App. 439, 200 S.E.2d 151 (1973). Allowance of attorney’s fees under O.C.G.A. § 34-9-108 must be predicated upon determination that the noncompliance with O.C.G.A. § 34-9-221 of the party against whom such fees are to be assessed was ‘‘without reasonable grounds’’. Union Carbide Corp. v. Coffman, 158 Ga. App. 360, 280 S.E.2d 140 (1981). ‘‘Unlawfulness’’ is not the correct standard for awarding attorney’s fees pursuant to O.C.G.A. § 34-9-108(b)(2); an award of attorney’s fees pursuant to that statute requires a finding of non-compliance with O.C.G.A. § 34-9-221 which was ‘‘without reasonable grounds’’. When there was affirmative evidence of a reasonable ground for the employer to believe that no payment was due, and

thereby to commit a technical violation of the time-frame requirements of § 34-9-221, the court erred in affirming the board’s award of attorney’s fees. Waffle House, Inc. v. Bozeman, 194 Ga. App. 860, 392 S.E.2d 48 (1990). When a self-insurer temporarily ceased benefit’s payments, but notified the Board and the Insurance Commissioner, and when there was no evidence in the claimant’s record authorizing a finding of willfulness or the imposition of a civil penalty, there was no error of fact or of law made by the administrative law judge or the board in failing to assess a civil penalty or to award attorney’s fees. Grier v. Proctor, 195 Ga. App. 116, 393 S.E.2d 18, cert. denied, 393 S.E.2d 18 (1990). When the employer filed the notice to controvert more than 21 days after knowledge of the employee’s injury and made no explanation for its noncompliance with O.C.G.A. § 34-9-221(d), the appellate division’s award of attorney fees to the employee was proper. Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 473 S.E.2d 166 (1996). Because a WC-2 was sufficient to place the state board of workers’ compensation and an employee on notice of the reason for terminating the employee’s benefits due to a change in condition for the better, the employee was entitled to benefits for the ten days following the filing of the notice and attorney’s fees pursuant to O.C.G.A. § 34-9-108 if the board determined that the employer’s failure to comply with O.C.G.A. § 34-9-221 was unreasonable. Reliance Elec. Co. v. Brightwell, 284 Ga. App. 235, 643 S.E.2d 742 (2007), cert. denied, 2007 Ga. LEXIS 535 (Ga. 2007). Appellate Division of the State Board of Workers’ Compensation did not err in assessing attorney fees against an employer under the Workers’ Compensation Act, O.C.G.A. § 34-9-108(b)(2), because the evidence supported the Appellate Division’s finding that the employer’s noncompliance with the Act, O.C.G.A. § 34-9-221, was without reasonable grounds; the employer failed to pay an employee any income benefits for the first week the employee was not working or that the income benefits the employer did pay were short

Reasonable Grounds (Cont’d) $100 per week, and the employer did not offer any explanation for the employer’s noncompliance with O.C.G.A. § 34-9-221. Crossmark, Inc. v. Strickland, 310 Ga. App. 303, 713 S.E.2d 430 (2011). Reasonable grounds found. - See Justice v. R.D.C., Inc., 187 Ga. App. 198, 369 S.E.2d 493 (1988). Merely engaging attorney to enforce rights under O.C.G.A. § 34-9-221 does not authorize claimant to an award of attorney’s fees under O.C.G.A. § 34-9-108 unless the employer’s noncompliance with § 34-9-221 was ‘‘without reasonable grounds’’. Union Carbide Corp. v. Coffman, 158 Ga. App. 360, 280 S.E.2d 140 (1981). Engaging an attorney to enforce rights under O.C.G.A. § 34-9-221 does not entitle a claimant to an award of attorney fees under O.C.G.A. § 34-9-108(b)(2) when there is no finding that the employer’s noncompliance was without reasonable grounds. Binswanger Glass Co. v. Brooks, 160 Ga. App. 701, 288 S.E.2d 61 (1981). Expert’s opinion as to reasonable fee as supporting evidence. - Sufficient evidence to support an award of attorney’s fees would not necessarily have to consist of the man hours devoted to the case but might only consist of an opinion of an expert as to what a reasonable fee would be for the services rendered. The expert’s opinion as to what a reasonable fee might be could depend on a number of factors other than the actual man hours spent representing the claimant. The claimant’s attorney might well qualify as an expert. Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576, 275 S.E.2d 152 (1980). Damages from attorney for fraud. - There is nothing in the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) which would prevent an employee claimant from recovering damages of the claimant’s attorney if the attorney is guilty of fraud in procuring the award before the board by fraudulently withholding evidence from the board as to the claimant’s true condition which resulted in an award by agreement less than what would have resulted if the withheld evi-

dence had been presented to the board. Cline v. Lever Bros. Co., 124 Ga. App. 22, 183 S.E.2d 63 (1971). Cases in which worker was not entitled to attorney’s fees. - When an employer prevailed in asserting that any award for a worker’s occupational disease would have to be apportioned pursuant to O.C.G.A. § 34-9-285, the employer’s controverting the worker’s claim obviously was not without reasonable grounds, so the worker was not entitled to attorney fees under O.C.G.A. §§ 34-9-108 and