2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 3 - Procedure
Part 2 - Hearing and Appeals
§ 34-9-108. Approval of Attorney's Fees by Board; Assessment of Fees Against the Offending Party; Restrictions on Attorney Advertisement and Division of Fees; Payment of Fees or Expenses

1. The fee of an attorney for service to a claimant in an amount of more than $100.00 shall be subject to the approval of the board, and no attorney shall be entitled to collect any fee or gratuity in excess of $100.00 without the approval of the board. The board shall approve no fee of an attorney for services to a claimant in excess of 25 percent of the claimant's award of weekly benefits or settlement.
2. 1. Upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may assess the adverse attorney's fee against the offending party.
   2. If any provision of Code Section 34-9-221, without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his or her rights under that Code section and the claimant prevails, the reasonable quantum meruit fee of the attorney, as determined by the board, and the costs of the proceedings may be assessed against the employer.
   3. Any assessment of attorney's fees made under this subsection shall be in addition to the compensation ordered.
   4. Upon a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the administrative law judge or the board may, in addition to reasonable attorney's fees, award to the adverse party in whole or in part reasonable litigation expenses against the offending party. Reasonable litigation expenses under this subsection are limited to witness fees and mileage pursuant to Code Section 24-13-25; reasonable expert witness fees subject to the fee schedule; reasonable deposition transcript costs; and the cost of the hearing transcript.
3. An attorney shall not advertise to render services to a potential claimant when he or she or his or her firm does not intend to render said services and shall not divide a fee for legal services with another attorney who is not a partner in or associate of his or her law firm or law office, unless:
   1. The client consents to employment of the other attorney after a full disclosure that a fee division will be made;
   2. The division is made in proportion to the services performed and the responsibility assumed by each; and
   3. The total fee of the attorneys does not clearly exceed reasonable compensation for all legal services such attorneys rendered to the client.
4. When attorney's fees or reasonable litigation expenses are awarded under this Code section, the administrative law judge or the board shall have the authority to order payment of such fees or expenses on terms acceptable to the parties or within the discretion of the board.

(Ga. L. 1920, p. 167, § 61; Code 1933, § 114-712; Ga. L. 1937, p. 528; Ga. L. 1978, p. 2220, § 14; Ga. L. 1981, p. 805, § 1; Ga. L. 1984, p. 22, § 34; Ga. L. 1988, p. 13, § 34; Ga. L. 1992, p. 1942, § 12; Ga. L. 2001, p. 748, § 2; Ga. L. 2011, p. 99, § 49/HB 24.)

- 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.

- 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).

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).

- 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).

- 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 compensation by the department (now board) to the employee. Thomas v. Travelers Ins. Co., 53 Ga. App. 404, 185 S.E. 922 (1936).

- 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).

- 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 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) and34-9-126(b). Cho v. Mt. Sweet Water, Inc., 322 Ga. App. 400, 745 S.E.2d 663 (2013).

- 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).

- After the superior court reversed and remanded an award of the Appellate Division of the State Board of Workers' Compensation to the extent that the award failed to include continuing assessed attorney fees, the superior court erred in deeming the Board's conclusion that the insurer's defense was reasonable as a misinterpretation of the evidence because the conclusion appeared to be a disagreement with the Board's factual findings and was subject to the any evidence standard of review, which the superior court failed to apply; thus, the appellate court vacated the superior court's judgment and remanded the case for application of the correct standard of review. Amguard Ins. Co. v. Kerkela, 345 Ga. App. 460, 812 S.E.2d 784 (2018).

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 Amsterdam 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 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).

- 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).

- 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 $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).

- 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).

- 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).

- 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 evidence had been presented to the board. Cline v. Lever Bros. Co., 124 Ga. App. 22, 183 S.E.2d 63 (1971).

- 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 and34-9-221. Whitaker v. Fieldcrest Mills, Inc., 174 Ga. App. 533, 330 S.E.2d 761 (1985).

When the evidence clearly provided a reasonable basis for the employer's contention that the worker's injury occurred while the worker was laid off and reasonable grounds for defending the matter did exist and were presented, the superior court erred in affirming the board's award of attorney's fees. Pet, Inc. v. Ward, 219 Ga. App. 525, 466 S.E.2d 46 (1995).

Superior court erred in reversing the workers' compensation board's appellate division denial of attorney fees to a worker under O.C.G.A. § 34-9-108(b); although controverted, evidence presented at the compensation hearing supported the division's finding that a subcontractor's defense to the claim - that it did not employ the worker - was reasonable. L & S Constr. v. Lopez, 290 Ga. App. 611, 660 S.E.2d 1 (2007), cert. denied, 2008 Ga. LEXIS 699 (Ga. 2008).

- Because some evidence, including a doctor's initial finding that both of the employee's wrists were injured on the job, supported the administrative law judge's determination that the employer's defense was unreasonable, the superior court erred in reversing the award of attorney fees by the State Board of Workers' Compensation. Waters v. PCC Airfoils, LLC, 328 Ga. App. 557, 760 S.E.2d 5 (2014).

- Reversal of an order requiring an employer to pay the employee's attorney's fees and expenses was affirmed because the employee was not successful on a claim for benefits under the Workers Compensation Act, O.C.G.A. § 34-9-1 et seq. Daniel v. Bremen-Bowdon Inv. Co., 348 Ga. App. 803, 824 S.E.2d 698 (2019).

- Presumption applicable in the case of an unexplained death is well established, and, without an autopsy or death certificate, it may well be difficult to convince any given factfinder that this presumption has been rebutted. When, however, a reasonable attempt has been made to convince the factfinder that the presumption has been rebutted, an award of attorney's fees would not be authorized simply because that reasonable attempt ultimately proved unsuccessful. Goode Bros. Poultry Co. v. Kin, 201 Ga. App. 557, 411 S.E.2d 724, cert. denied, 201 Ga. App. 903, 411 S.E.2d 724 (1991).

- When, based on the judge's finding that the suspension of benefits and the defense of the matter were unreasonable, the administrative law judge assessed attorney fees against the employer pursuant to O.C.G.A. § 34-9-221(i) and subsection (b) of O.C.G.A. § 34-9-101, and when, subsequently, the employee dismissed the employee's attorney and entered into settlement negotiations, which resulted in settlement of the employee's case, such a settlement agreement did not terminate the attorney's right to attorney fees, although the attorney played no part in the negotiations. Bass v. Annandale at Suwanee, Inc., 187 Ga. App. 209, 369 S.E.2d 529 (1988).

Stipulated settlement agreement, negotiated without notice to or consent of claimants' former attorney who had been awarded a fee, and which made no mention of the fee, did not deprive the attorney of the attorney's right to collect the fee. Don Mac Golf Shaping Co. v. Register, 185 Ga. App. 159, 363 S.E.2d 583 (1987); Yates v. Hall, 189 Ga. App. 885, 377 S.E.2d 887 (1989).

Defense that job training participant was not employee was not unreasonable, so as to support an award of attorney fees against the employer, when the participant was given a training allowance rather than a wage. Tommy Nobis Ctr. v. Barfield, 187 Ga. App. 394, 370 S.E.2d 517 (1988).

- Defense that an employee fell within the "farm laborers" exemption was not unreasonable. J & C Poultry v. Reyes-Guzman, 227 Ga. App. 731, 489 S.E.2d 853 (1997).

- Award based on a percentage in a contingency fee contract between an attorney and a claimant for an employer's belated commencement of workers' compensation payments was proper and did not constitute an abuse of discretion. Jones v. Brown, 188 Ga. App. 268, 372 S.E.2d 661 (1988).

25 percent contingency fee was reasonable based upon the time involved and services performed, and an award based thereon was properly upheld as a reasonable quantum meruit fee recoverable under O.C.G.A. § 34-9-108. Atlas Automotive, Inc. v. Wilson, 225 Ga. App. 631, 484 S.E.2d 669 (1997).

- Employer's argument relating to a change in the claimant's condition based solely on the treating physician's change of opinion was not reasonable, and an award of attorney's fees to the claimant was proper. St. Joseph's Hosp. v. Cope, 225 Ga. App. 781, 484 S.E.2d 727 (1997).

Employer's failure to timely file a notice that the employer intended to controvert the claimant's workers' compensation claim for benefits, plus its failure to give a reasonable explanation for not doing so, meant the administrative law judge was authorized to award attorney's fees and the trial court erred in determining otherwise in a case when the employer was accused of unreasonably defending the claim. Milliken & Co. v. Poythress, 257 Ga. App. 586, 571 S.E.2d 509 (2002).

Administrative law judge (ALJ) and the Georgia Workers' Compensation Board properly awarded an employer its attorney fees as: (1) the claimant did not appeal the ALJ's decision to require the claimant to submit to an examination, but simply defied it; (2) the blatant defiance of an ALJ order was evidence that the claimant defended the proceedings in part without reasonable grounds; (3) the claimant was not required to defy the order so as to present the claimant's justification for doing so; (4) the claimant had a chance to present the claimant's justification to the ALJ, and failed to reiterate the claimant's position on an appeal to the Board; and (5) the ALJ and the Board had some evidence upon which to base a finding that when the claimant contested the sanctions motion, the claimant did so without reasonable grounds. Goswick v. Murray County Bd. of Educ., 281 Ga. App. 442, 636 S.E.2d 133 (2006), cert. denied, 2007 Ga. LEXIS 102 (Ga. 2007).

Claimant was properly awarded attorney fees under O.C.G.A. § 34-9-108(b)(2); the state board of workers' compensation found that the employer's unilateral suspension of benefits without a board order was unreasonable because the employer's overpayments were due to its own error, and the record supported this factual finding. Renu Thrift Store, Inc. v. Figueroa, 286 Ga. App. 455, 649 S.E.2d 528 (2007), cert. dismissed, 2007 Ga. LEXIS 812 (Ga. 2007).

There was some evidence to support the assessment of attorney fees against an employer because the Workers' Compensation Act, O.C.G.A. § 34-9-108(b)(1) provided for an award of attorney fees if the proceeding was defended in part, without reasonable grounds, and the medical evidence was uncontroverted as to an employee's need for attendant care at least seven days a week, eight hours a day; however, the superior court erred in reversing the Appellate Division of the Workers' Compensation Board as to the amount of its attorney fees award because the appellate division based its fee award on the record and indicated that its decision went beyond the attorney's valuation opinion, but included testimony and documentation that showed various actions taken by the attorney, the nature and circumstances of which the appellate division was entitled to assess. Medical Office Mgmt. v. Hardee, 303 Ga. App. 60, 693 S.E.2d 103 (2010).

- When evidence supported the board's assessment of attorney fees because the employer appealed in part without reasonable grounds, it was error for the trial court to reverse the board as to its fee award. Richardson v. Air Prods. & Chems. Inc., 217 Ga. App. 663, 458 S.E.2d 694 (1995).

Superior court erred in ruling that the Appellate Division of the State Board of Workers' Compensation committed a legal error in the manner in which it exercised its discretion in distributing the legal fees allotted in a settlement between an employee and an employer because the contingent fee contracts provided prima facie proof that 25 percent of the offer the employer made before the employee dismissed the first attorney would be a reasonable fee for that attorney and that 25 percent of the final settlement would be a reasonable fee for the second attorney; the Appellate Division considered evidence regarding the first attorney's typical hourly rate, the amount of time the attorney spent pursuing the employee's claim, and the result of those efforts, as well as the amount of time the second attorney spent pursuing the employee's claim, and the result of those efforts, and because the Board was limited to distributing a total of $162,875 in fees, it was required to exercise its discretion to determine the relative value of the attorneys' services. Flores v. Keener, 302 Ga. App. 275, 690 S.E.2d 903 (2010).

ADVISORY OPINIONS OF THE STATE BAR

Increase in attorney fees.

- In workers' compensation cases in which the employee-claimant's attorney seeks to increase the attorney's fee by appealing the Workers' Compensation Board's fee determination to the Superior Court, the lawyer is involved in a conflict of interest if the lawyer does not give the client a full explanation concerning their conflicting positions in the appeal and advise the client of the client's right to obtain independent legal counsel to protect the client's interests during this stage of litigation. Adv. Op. No. 81-29 (November 20, 1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, § 626 et seq.

- 101 C.J.S., Workers' Compensation, §§ 1568, 1569.

- Constitutionality of statute penalizing unsuccessful appeal to courts from action of administrative board, 39 A.L.R. 1181.

Compensation of attorneys for services in connection with claim under Workmen's Compensation Act, 159 A.L.R. 912.

What constitutes "trial," "final trial," or "final hearing" under statute authorizing allowance of attorneys' fees as costs on such proceeding, 100 A.L.R.2d 397.

Workmen's compensation: attorney's fee or other expenses of litigation incurred by employee in action against third-party tort-feasor as charge against employer's distributive share, 74 A.L.R.3d 854.

Workers' compensation: availability, rate, or method of calculation of interest on attorney's fees or penalties, 79 A.L.R.5th 201.

Validity and enforceability of express fee-splitting agreements between attorneys, 11 A.L.R.6th 587.

Attorneys' fee awards under 5 USCS § 7701(g), which allows award of attorneys' fees to prevailing employee for appeal to merit systems protection board from adverse employment decision, 143 A.L.R. Fed. 145.

ARTICLE 4 INSURANCE OF COMPENSATION LIABILITY GENERALLY

JUDICIAL DECISIONS

Purpose of worker's compensation insurance differs from general liability insurance because it is not intended to benefit the employer who pays the premiums but to pay compensation to the injured employee. Bituminous Cas. Co. v. Renfroe, 130 Ga. App. 621, 204 S.E.2d 317 (1974).

- Workers' compensation insurance is but one form of casualty insurance. Travelers Ins. Co. v. Adkins, 200 Ga. App. 278, 407 S.E.2d 775 (1991).

Law of mutual departure, as applied to insurance policies, applies in the context of workers' compensation insurance. Travelers Ins. Co. v. Adkins, 200 Ga. App. 278, 407 S.E.2d 775 (1991).

Mutual departure by the parties from the terms of a workers' compensation policy required the insurer to give reasonable notice of an intent to require strict compliance, when there was some evidence that in handling disputes over the audited amounts of premiums due, the insurer typically cancelled the policy but reinstated it once an agreement on the premium was reached and the money paid. Travelers Ins. Co. v. Adkins, 200 Ga. App. 278, 407 S.E.2d 775 (1991).

- Cancellation of a workers' compensation insurance policy in compliance with O.C.G.A. § 33-24-44(b) and a state board of workers' compensation rule, regardless of other circumstances surrounding the cancellation, does not automatically entitle a workers' compensation insurer to complete relief against a claim that the cancellation was not effective or applicable. Travelers Ins. Co. v. Adkins, 200 Ga. App. 278, 407 S.E.2d 775 (1991).

RESEARCH REFERENCES

ALR.

- Right of insurer under Workmen's Compensation Act to recover from employer, who has breached warranty, the amount it has been obliged to pay employee, 22 A.L.R. 1481.

Workmen's compensation: findings upon claim for compensation as binding upon insurance carrier, 28 A.L.R. 882.

Award against employer under Workmen's Compensation Act as within policy indemnifying him against liability imposed by law for "damages", 142 A.L.R. 1423.

Preemption by Federal Longshore and Harbor Workers' Compensation Act of state law claims for bad-faith dealing by insurer or agent of insurer, 90 A.L.R. Fed. 723.