State News : Georgia

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Rayford H. Taylor
Of Counsel
Casey Gilson P.C.
Six Concourse Parkway, Suite 2200
Atlanta, Georgia 30328
770-512-0300 -Ext. 529
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Heritage Healthcare of Toccoa v. Ayers

(07/16/2013, Georgia Court of Appeals)


Georgia Court of Appeals upholds employee's counsel's right to assessed attorney's fees from employer/insurer on past due indemnity benefits, late payment penalty, and future indemnity benefits based on employer's conduct.


The employee reported an alleged work injury immediately after its occurrence on October 26, 2010.  Her employer fired her the next day and rejected her request for disability benefits.  On November 23, 2010, the employee filed a request for a hearing requesting income benefits and medical benefits, along with late payment penalties, assessed attorney's fees, and expenses of litigation.

The employer never controverted the claim, and on March 11, 2011, the employer's workers' compensation carrier paid the employee a lump sum for twenty weeks of past due benefits.  The carrier then then began paying weekly benefits.  On September 27, 2011, two days before a scheduled final hearing, the carrier paid the employee a lump sum as a late payment penalty for the March 11, 2011 benefits payment.

The final hearing took place before an administrative law judge ("ALJ") on September 29, 2011 for resolution of the employee's claim for assessed attorney's fees.  The ALJ rejected the employee's claim for fees and employee appealed to the State Board.  The State Board ruled that the employee was entitled to assessed attorney's fees and to reasonable expenses of litigation.  Additionally, the Board found that although the employer did not contest the late payment penalty, it delayed paying the penalty without reasonable grounds and assessed attorney's fees were also warranted on those funds.

The case eventually reached the Court of Appeals which ruled that not only was the employee's attorney entitled to assessed attorney's fees on the past due benefits, but also the penalty benefits paid by the employer.  In addition, the employee's counsel was entitled to receive an attorney's fee of 25% of the employee's weekly benefit for each week in the future up to four hundred weeks, unless the weekly benefit was terminated sooner.

The Appellate Court held that while the Board did correctly assess attorney's fees on the past benefits and on the penalty, it erroneously failed to award attorney's fees on the future weekly benefits pursuant to the statute.

In reaching its conclusion, the Appellate Court recognized that O.C.G.A. §§ 34-9-108(b)(1) and 34-9-108(b)(2) established the right of the employee to have assessed attorney's fees against the employer's insurer based upon the late payment and the resulting non-compliance with O.C.G.A. § 34-9-221.  The Court recognized that it was appropriate to assess a "reasonable Quantum Meruit fee" of 25% (in this case) on future benefits because the responsibility for the claimant's attorney's fees should be shifted from the claimant to the employer's insurer because of the conduct of the employer or its insurer.