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). Employee entitled to attorney’s fees. — 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). Attempt made to rebut presumption in case of unexplained death. — 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 718 34-9-108 WORKERS’ COMPENSATION 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). Right to fees not terminated by settlement agreement. — 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). Farm laborers defense not unreasonable. — 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 contingency fee contract. — Award based on a percentage 34-9-108 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). Attorney’s fees properly awarded. — 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 reason- 719 Reasonable Grounds (Cont’d) able 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 divi- 34-9-108 sion was entitled to assess. Medical Office Mgmt. v. Hardee, 303 Ga. App. 60, 693 S.E.2d 103 (2010). Reversal of board’s award of fees not authorized. — 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). 720 34-9-108 WORKERS’ COMPENSATION T.34, C.9, A.4