Raines & Milam v

Milam, 161 Ga. App. 860, 289 S.E.2d 785 (1982). Lack of specificity in subsection (d). — There is no specificity in O.C.G.A. § 34-9-221(d) concerning grounds on which right to compensation can be controverted. Georgia Power Co. v. Safford, 171 Ga. App. 387, 319 S.E.2d 537 (1984). Mandatory nature of subsection (d). — Word ‘‘shall’’ in subsection (d) of O.C.G.A. § 34-9-221 makes it mandatory that such notice be filed. Raines & Milam v. Milam, 161 Ga. App. 860, 289 S.E.2d 785 (1982). Penalty for delay in payments. — Intentional delay of workers’ compensation payments did not give rise to an 34-9-221 independent cause of action against the employer or its insurer, as the penalties for such a delay were provided by O.C.G.A. § 34-9-221(e). Bright v. Nimmo, 253 Ga. 378, 320 S.E.2d 365 (1984); Dutton v. Georgia Associated Gen. Contractor Self-Insurers Trust Fund, 215 Ga. App. 607, 451 S.E.2d 504 (1994). Georgia penalty provision did not preclude the plaintiff from maintaining the plaintiff ’s claim for damages against an insurance carrier for cessation and withholding of workers’ compensation benefits pursuant to a garnishment order. Brazier v. Travelers Ins. Co., 602 F. Supp. 541 (N.D. Ga. 1984). There was no independent cause of action, apart from the remedies available under O.C.G.A. § 34-9-221(e), when an employer and its insurer failed to pay income benefits ‘‘without reasonable grounds’’, resulting in the foreclosure on the employee’s home. Bright v. Nimmo, 756 F.2d 1513 (11th Cir. 1985). Workers’ compensation claimant was not entitled to a late-payment penalty since the law firm’s return of the first check issued by the defendants did not invalidate the otherwise valid, timely payment; there was evidence that the first check was timely mailed and complied with the terms of the settlement agreement. Abdul-Hakim v. Mead Sch. & Office Prods., 267 Ga. App. 121, 598 S.E.2d 808 (2004). State board of workers’ compensation properly assessed a 15 percent penalty against an employer for its failure to make benefit payments on a weekly basis as required by O.C.G.A. § 34-9-221(b); the statute required that payments be made weekly unless an alternate schedule was approved by the board, and it was undisputed that the employer had changed its payment schedule absent an order directing otherwise. Renu Thrift Store, Inc. v. Figueroa, 286 Ga. App. 455, 649 S.E.2d 528 (2007), cert. dismissed, 2007 Ga. LEXIS 812 (Ga. 2007). Superior court did not err in affirming the decision of the Appellate Division of the State Board of Workers’ Compensation to award a workers’ compensation claimant benefits following the employer/ insurer’s total failure to file notice of the 815 Practice and Procedure (Cont’d) employer’s intention to suspend the worker’s benefits because the employer/insurer’s noncompliance with O.C.G.A. § 34-9-221 was without reasonable grounds; the employer/insurer’s complete failure to file the required termination form required the employer to pay benefits until the hearing date, and not only did the employer/insurer fail to give notice to the claimant before terminating the claimant’s income benefits, until the hearing, the employer never explained why the employer did so. S&B Eng’rs & Constructors Ltd. v. Bolden, 304 Ga. App. 534, 697 S.E.2d 260, cert. dismissed, No. S10C1789, 2010 Ga. LEXIS 912 (Ga. 2010). District court properly concluded that the court lacked subject matter jurisdiction to order an employer and workers’ compensation insurer to pay workers’ compensation benefits because the State Board of Workers’ Compensation had exclusive jurisdiction over such claims and the workers’ compensation scheme provided the employee a remedy under O.C.G.A. §§ 34-9-221 and 34-9-240. Prine v. Chailland, Inc., No. 10-11706, 2010 U.S. App. LEXIS 23374 (11th Cir. Nov. 9, 2010) (Unpublished). 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). It was error to reverse a penalty assessed against an employer under O.C.G.A. § 34-9-221(f ) on the basis of a finding that O.C.G.A. § 34-9-15(b) gave the board discretion not to assess the penalty because the employee and the employer reached an approved liability stipulated settlement after a compensable injury was established, and the employer did not pay benefits within 20 days of the adoption of that agreement by the Workers’ Compensation Board and the issuance of an award based thereon; O.C.G.A. 34-9-221 § 34-9-15(b) only applied to no-liability stipulated settlements, and the parties entered into an approved liability stipulated settlement. Brewer v. Wellstar Health System, 314 Ga. App. 234, 723 S.E.2d 526 (2012). Change in ‘‘status’’ included claim for late penalties after last benefit payment made. — Employee’s status, i.e., the employee’s legal condition vis-a-vis the employee’s employer, was first established when the employer began paying benefits voluntarily and last established when the last benefit payment was made in 2002; therefore, the employee’s application for penalties for late benefits payments under O.C.G.A. § 34-9-221 made in 2010, eight years later, was governed by the change in condition statute of limitations, O.C.G.A. § 34-9-104(b), rather than the general statute of limitations, O.C.G.A. § 34-9-82. Metro. Atlanta Rapid Transit Auth. v. Reid, 295 Ga. 863, 763 S.E.2d 695 (2014). Award pursuant to consent judgment due when approved by board. — When an award is made pursuant to a consent judgment, a judgment which is nonappealable, the award becomes ‘‘due’’ for purposes of O.C.G.A. § 34-9-221(f ) when approved by the board. Linehan v. Combined Ins. Co., 176 Ga. App. 815, 338 S.E.2d 34 (1985). Newly discovered evidence. — Discovery of fact by insurer that injury did not arise out of and in the course of employment because claimant was working for partner individually and not for partnership when injury was sustained, was not newly discovered evidence under O.C.G.A. § 34-9-221(h) as it could have been diligently ascertained by the insurer before the first payment was made. Anderson v. Araguel, Sanders, Carter & Swain, 163 Ga. App. 610, 295 S.E.2d 750 (1982). Evidence supported finding that employer acted with due diligence in obtaining a third medical test to determine employee’s condition, the results of the test having constituted ‘‘newly discovered evidence’’ which authorized the suspension of benefits. Carden v. Arrow Co., 193 Ga. App. 539, 388 S.E.2d 348 (1989). When the employer is thwarted in its opportunity to discover the evidence sup- 816 34-9-221 WORKERS’ COMPENSATION porting its defense of the claim by the claimant’s own misrepresentation of facts, evidence of noncompensability which is discovered after the expiration of the 60-day period for controverting a claim is newly discovered evidence which gives the employer a ground for controverting benefits. Gordon County Farms v. Edwards, 204 Ga. App. 770, 420 S.E.2d 607, cert. denied, 204 Ga. App. 921, 420 S.E.2d 607 (1992). Diligence in obtaining evidence applies as of when compensation initiated. — Diligence requirement under subsection (h) of O.C.G.A. § 34-9-221 for introduction of new evidence (new evidence must not have been discoverable by reasonable diligence) is judged on the basis of when compensation was voluntarily initiated rather than the date of the ‘‘first hearing.’’ Georgia Power Co. v. Pinson, 167 Ga. App. 90, 305 S.E.2d 887 (1983). Application Physician’s opinion must not have been obtainable previously to be newly discovered. — In order to be given consideration as ‘‘newly discovered evidence’’, under subsection (h) of O.C.G.A. § 34-9-221, not only would a physician’s subsequent opinion have to be nonimpeaching of the physician’s previous one, it would also have to be shown that it was not previously obtainable in the exercise of ordinary diligence. Georgia Power Co. v. Pinson, 167 Ga. App. 90, 305 S.E.2d 887 (1983). Claimant’s burden to show requisite number of employees as affecting employer’s filing requirement. — When purported employer has no express knowledge that a claim is brought against the employer in the employer’s individual capacity and when so apprised does not controvert the basic fact that the employer is or was an employer of the alleged employee, then the employer need not the file the form prescribed by rule promulgated under O.C.G.A. § 34-9-221 to controvert right to benefits nor would the employer be subject to an adverse presumption from a failure to file such form, but rather burden of showing employer-employee relationship and of showing that the employer was subject to provisions of the 34-9-221 Workers’ Compensation Act, O.C.G.A. § 34-9-1 et seq., by virtue of having the requisite number of employees rests upon claimant. Fowler v. Gilmer County Comm’rs of Rds. & Revenues, 164 Ga. App. 1, 294 S.E.2d 708 (1982). 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). 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). 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 §§ 34-9-108 and 34-9-221. Whitaker v. Fieldcrest Mills, Inc., 174 Ga. App. 533, 330 S.E.2d 761 (1985). ‘‘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 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 817 Application (Cont’d) 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). When the finding of the board that the employer’s defense was made without reasonable grounds was without evidence to support it, the superior court did not err by reversing an award of attorney’s fees to the claimant. Autry v. Mayor of Savannah, 222 Ga. App. 691, 475 S.E.2d 702 (1996). 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 in which the employer was accused of unreasonably defending the claim. Milliken & Co. v. Poythress, 257 Ga. App. 586, 571 S.E.2d 509 (2002). 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), 34-9-221 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 it 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.