Chevrolet-Pontiac-Canada Group v. Pearson

357 S.E.2d 152 | Ga. Ct. App. | 1987

Deen, Presiding Judge.

We granted this discretionary appeal to consider whether the DeKalb County Superior Court’s award of attorney fees to claimant should be reversed, remanded to the Board of Workers’ Compensation for entry of an amended award based upon proper proof of the value of the attorney’s services, or affirmed. Scrutiny of the record of the instant case, including the January 23, 1986 hearing before an administrative law judge, indicates that, although under relevant statutory authority it was proper for there to be an award of attorney fees, the evidence presented as to the value of the services for which those fees were sought falls far short of the standard of proof required in this state. See Hardee’s v. Bailey, 180 Ga. App. 332, 333 et seq. (349 SE2d 211) (1986); State of Ga. v. Mitchell, 177 Ga. App. 333 (339 SE2d 384) (1985); Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576 (275 SE2d 152) (1980). It therefore follows that this case must be remanded to the full Board of Workers’ Compensation for determination of the proper amount of attorney fees to be assessed against appellant General Motors, on the basis of sufficient competent evidence of the value of the attorney’s services.

Decided May 4, 1987. Lloyd Sutter, Melvin K. Westmoreland, for appellant. Steven E. Marcus, for appellee.

Appellant urges in its brief that this court de facto overrule the superior court’s remand to the full Board for determination of the appropriateness of assessing an additional 20 percent penalty against General Motors for not filing a timely initial appeal. “An enumeration of error may not be enlarged by brief on appeal to cover issues not contained in the original enumeration.” Scott v. State, 177 Ga. App. 474, 477 (339 SE2d 718) (1986); accord Tucker v. State, 173 Ga. App. 742 (327 SE2d 852) (1985). Because the trial court’s remand for consideration of the propriety of the additional penalty was not originally enumerated as error, we cannot properly address this issue.

Judgment reversed and case remanded, with direction.

Birdsong, C. J., and Pope, J., concur.