2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 4 - Insurance of Compensation Liability Generally
§ 34-9-126. Filing by Employer of Evidence of Compliance With Insurance Requirements; Assessment of Attorney's Fees and Increased Compensation Against Employer Who Fails to File

1. Every employer subject to the compensation provisions of this chapter shall file with the board in the form prescribed by the board, annually or as often as the board in its discretion may deem necessary, evidence satisfactory to the board of his compliance with Code Section 34-9-121 and all other Code sections relating thereto.
2. Any employer subject to the compensation provisions of this chapter who refuses or willfully neglects to comply with subsection (a) of this Code section shall be guilty of a misdemeanor. In hearing any application for compensation by an injured employee of such delinquent employer, the board may assess compensation against such employer in an amount 10 percent greater than that provided for in this chapter and, in addition to the increased compensation, shall also fix a reasonable attorney's fee to be paid by the employer to the representative of the employee. The attorney's fee and the increased compensation shall be due and payable at once, and their payment shall be enforced as provided elsewhere in this chapter.

(Ga. L. 1920, p. 167, § 67; Ga. L. 1923, p. 92, § 7; Code 1933, §§ 114-603, 114-9901; Ga. L. 1972, p. 929, §§ 5, 6.)

- Punishment for misdemeanors generally, § 17-10-4.

- For article discussing attorney fees in workers' compensation claims, see 15 Ga. St. B. J. 187 (1978). For annual survey on decisions impacting workers' compensation, see 69 Mercer L. Rev. 357 (2017).

ANALYSIS

• General Consideration
• Applicability of Section
• Attorney's Fees

This section embodied a penalty and must be strictly construed. Therefore, the penalty provided for can be assessed only when the employer, through refusal or willful neglect, has failed to comply with the provisions of the act as expressed in that section. Petty v. Mayor of College Park, 63 Ga. App. 455, 11 S.E.2d 246 (1940); Dunn v. American Mut. Liab. Ins. Co., 64 Ga. App. 509, 13 S.E.2d 902 (1941).

This section did not authorize an assessment of damages and attorney's fees on account of a refusal or willful neglect to pay the compensation provided for in the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) to one entitled thereto. Dunn v. American Mut. Liab. Ins. Co., 64 Ga. App. 509, 13 S.E.2d 902 (1941).

- Employer's failure to secure workers' compensation coverage mandated by the state legislature may subject the employer to criminal penalties, including imprisonment, but it does not follow that the employer's discharge in bankruptcy is to be denied as an additional penalty. Hope v. Walker, 48 F.3d 1161 (11th Cir. 1995).

- Subsection (b) of O.C.G.A. § 34-9-126 specifies that any employer who "refuses or wilfully neglects" to provide evidence of the employer's compliance with the provisions of O.C.G.A. § 34-9-121 shall be guilty of a misdemeanor and may be required to pay a penalty in the amount of 10 percent of the benefits awarded, plus reasonable attorney's fees. Franks v. Avila, 200 Ga. App. 733, 409 S.E.2d 564 (1991).

Cited in Moody v. Tillman, 45 Ga. App. 84, 163 S.E. 521 (1932); Liberty Lumber Co. v. Silas, 181 Ga. 774, 184 S.E. 286 (1936); Durham Land Co. v. Kilgore, 56 Ga. App. 785, 194 S.E. 49 (1937); Elliott Addressing Mach. Co. v. Howard, 59 Ga. App. 62, 200 S.E. 340 (1938); Hearing v. Johnson, 105 Ga. App. 408, 124 S.E.2d 655 (1962); Stokes v. Peyton's, Inc., 526 F.2d 372 (5th Cir. 1976); Samuel v. Baitcher, 154 Ga. App. 602, 269 S.E.2d 96 (1980); Hester v. Saturday, 138 Bankr. 132 (Bankr. S.D. Ga. 1991).

Applicability of Section

Applicability of section.

- This section had no application to a case in which the employer accepted the provisions of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) and complied with the requirements thereof as to filing with the board the necessary form prescribed, or other evidence satisfactory to the board of the employer's compliance. Dunn v. American Mut. Liab. Ins. Co., 64 Ga. App. 509, 13 S.E.2d 902 (1941).

- This section, providing for penalties for failure to comply with the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), did not apply to municipalities. Petty v. Mayor of College Park, 63 Ga. App. 455, 11 S.E.2d 246 (1940).

- Superior court did not err in affirming the assessment of a penalty and attorney fees by the Appellate Division of the Georgia Board of Workers' Compensation against the contractor because the contractor willfully failed to obtain insurance as the contractor was subject to the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., which required the contractor to be insured, as some evidence supported the Board's factual finding that the contractor knew the contractor would need three workers in addition to the contractor to complete the job but told the county that the contractor was not required to obtain coverage under the Act. Wills v. Clay County, 339 Ga. App. 79, 793 S.E.2d 432 (2016).

Legislature did not intend to penalize the taxpayers of a municipality for the failure of the officers thereof to comply with the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) in taking insurance and making the required reports. Petty v. Mayor of College Park, 63 Ga. App. 455, 11 S.E.2d 246 (1940).

Attorney's Fees

Jurisdiction and timeliness.

- Jurisdiction of the Industrial Board (now Board of Workers' Compensation) to assess damages and attorney's fees against an employer for refusing or willfully neglecting to comply with the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) was as full and complete when an agreement was submitted to it for approval as it was when an application for compensation was being heard and determined. In either case, it is the duty of the board to see that this law was complied with. Russell v. Shelton, 59 Ga. App. 466, 1 S.E.2d 225 (1939).

- The provisions of this section did not provide for the assessment of attorney's fees against the employer and its carrier for failure to pay compensation when due or to furnish medical treatment when needed. Wilson v. Maryland Cas. Co., 71 Ga. App. 184, 30 S.E.2d 420 (1944).

- When attorney fees are assessed against an employer/insurer pursuant to O.C.G.A. § 34-9-126, the award must be supported by some evidence of the value of the legal services rendered. Copelan v. Burrell, 174 Ga. App. 63, 329 S.E.2d 174 (1985).

- 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).

OPINIONS OF THE ATTORNEY GENERAL

Fingerprinting required.

- Misdemeanor offenses arising under O.C.G.A. § 34-9-126 are offenses for which those charged are to be fingerprinted. 2011 Op. Att'y Gen. No. 2011-1.

RESEARCH REFERENCES

Am. Jur. 2d.

- 82 Am. Jur. 2d, Workers' Compensation, § 54.

- Indemnity from manufacturer or vendor for liability incurred under workmen's compensation law for injury to employee by defective machine furnished employer, 37 A.L.R. 853.

Validity of statutory provision for attorney's fees, 90 A.L.R. 530.

Insurance carrier's liability for part of employer's liability attributable to violation of law or other misconduct on his part, 1 A.L.R.2d 407.

Amount of attorney's compensation in absence of contract or statute fixing amount, 56 A.L.R.2d 13, 86 A.L.R. Fed. 866.

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

Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.

Excessiveness or adequacy of attorneys' fees in matters involving real estate--modern cases, 10 A.L.R.5th 448.

Excessiveness or adequacy of attorneys' fees in domestic relations cases, 17 A.L.R.5th 366.

Calculations of attorneys' fees under Federal Tort Claims Act - 28 USCS § 2678, 86 A.L.R. Fed. 866.