Crossmark, Inc. v. Strickland
310 Ga. App. 303
Ga. Ct. App.2011Background
- Crossmark and its insurer appeal a superior court order affirming a workers’ compensation benefits award to Strickland.
- This is the second appellate consideration; Strickland had benefits, Crossmark terminated them and filed a notice to controvert.
- At the first hearing the ALJ found Strickland failed to prove the injury arose out of and in the course of employment; Crossmark disputed and paid some benefits.
- Strickland appealed, arguing the notice to controvert was invalid for underpayment of benefits; the Appellate Division vacated the ALJ’s decision and remanded for evidence on notice validity.
- On remand, the ALJ held the notice to controvert invalid because Crossmark had not paid all benefits due before filing, underpayment of about $100/week and failure to pay the first seven days of wage benefits; the Appellate Division adopted, and the superior court affirmed.
- Crossmark challenges eight errors but centers on the standards of review, remand authority, notice validity, and attorney-fee awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the standard of review was correct. | Crossmark argues de novo review; superior court used any-evidence rule. | Strickland contends proper standard was used; not substantive. | Harmless error; substantive outcome correct. |
| Whether the Appellate Division had authority to remand for notice validity. | Crossmark asserts lack of authorization; waiver and res judicata apply. | Strickland contends Appellate Division has broad remand power. | Appellate Division properly remanded under OCGA § 34-9-103(a). |
| Whether a notice to controvert is invalid if employer does not pay all benefits due when filed. | Crossmark urges Hamby/Rayburn should be overruled. | Hamby/Rayburn require payment of all benefits for validity; no payment means invalid. | Hamby/Rayburn maintained; nonpayment renders notice invalid. |
| Whether attorney fees were properly assessed under OCGA 34-9-108(b)(2). | Crossmark argues lack of reasonable grounds for nonpayment. | Strickland shows employer failed to comply; fees appropriate. | Fees awarded; noncompliance without reasonable grounds. |
Key Cases Cited
- Cartersville Ready Mix Co. v. Hamby, 224 Ga.App. 116 (Ga. Ct. App. 1996) (nonpayment before notice invalidates notice to controvert)
- Southeastern Aluminum Recycling v. Rayburn, 172 Ga.App. 648 (Ga. Ct. App. 1984) (timeliness of notice after initial payment)
- Carr v. A.P. & Harry Jones Logging, 198 Ga.App. 698 (Ga. Ct. App. 1991) (noncompliance evidence supports fee awards)
- S & B Engineers, etc. v. Bolden, 304 Ga.App. 534 (Ga. Ct. App. 2010) (noncompliance without reasonable grounds supports fees)
- Hamby; Rayburn referenced in Hamby, 224 Ga.App. 116; 172 Ga.App. 648 (Ga. Ct. App. 1996; 1984) (principle that employer must pay all benefits or face invalid notice)
- Home Depot v. McCreary, 306 Ga.App. 805 (Ga. Ct. App. 2010) (remedial appellate remand authority)