In this wоrkers’ compensation case the administrative law judge (ALJ) awarded compensation to appellee/claimant and, also, assessed certain penalties and attorney fees against appellant/employer pursuant to OCGA § 34-9-221 (e) and § 34-9-108 (b) (2), respectively. The award was affirmed by the full board and the superior court. We granted this petition of appellants — employer and its insurance carrier — for a discretionary appeal from the order of the superior court affirming the award of the board.
1. The award provides for the payment of attorney fees by appellants “without deduction from benefits due to the claimant, an amount rеpresenting 33- Vs% of all income benefits and penalties which have accrued to date, and an amount representing 33- Vz % of all income benefits and penalties which are payable in the future,” for a period not tо exceed 400 weeks unless sooner terminated. Appellants’ first enumeration assigns error to the assessment of add-on attorney fees calculated not only on income benefits but on penalties as well. Appellаnts argue that penalties are not income benefits or “compensation” under OCGA § 34-9-108 (b) (3) which provides that “[a]ny assessment of [attorney] fees made under this subsection shall be in addition to the compensation ordered.” The issue thus presented for resolution is whether “compensation” under OCGA § 34-9-108 (b) (3) includes penalties imposed for violation of OCGA § 34-9-221.
The apparent purpose of OCGA § 34-9-221 is to provide immediate financial assistance to injured employees and to furnish a speedy, inexpensive and final settlement of their claims. Southeastern Aluminum Recycling v. Rayburn,
“The State Board of [Workers’] Compensation is an administrative body possessing only the power conferrеd upon it by statute to administer the [workers’] compensation act. [Cits.] Although the act is in derogation of the common law, it is remedial in its nature and purpose and should be liberally construed to give effect to the purposes for which it was enacted. [Cits.] A reasonable and logical application of the act should be had according to the ordinary and usual acceptation and signification of its terms. [Cits.]” Wilson v. Maryland Cas. Co.,
2. Appellants next challenge the sufficiency of the evidence to support the amount awarded as attorney fees. The record on appeal discloses that counsel fоr claimant requested the ALJ to impose attorney fees under OCGA § 34-9-108 (b) based upon his employment contract with the claimant. However, recognizing that the ALJ had discretion in this matter to award an hourly rate, counsel stated in his place that he has been an attorney for seven years,, that his rate is $75 an hour, that that is a reasonable rate for the middle Georgia area, and that he had expended approximately 18 hours in this case through the hеaring. Counsel again requested the imposition of attorney fees based upon the employment contract rather than the hourly rate; however, the contract itself was not tendered into evidence, and it does not appear of record on appeal.
In whatever manner the board assesses attorney fees against an
3. Appellants’ fourth enumeration cites as error the ALJ’s taking “judicial notice” of the late filing of their notice to controvert contained in subsection C of the form WC-1, which is a part of the record on appeal. Form WC-1 is entitled “Employer’s First Report of Injury or Occupational Disease” and is comprised of three subsections. As is pertinent here, subsection A is essentially a report of the accident and subsection C is notice to controvert payment of compensation. In support of this enumeration, appellants cite OCGA § 34-9-61 (b) which provides in pertinent part that accident reports filed with the board “shall not be used as evidence against any employer in any action at law brought by any employee for the recovery of damages or in any proceeding under this chapter.”
The record discloses that the ALJ properly excluded claimant’s tender of the WC-1 form as evidence at the hearing as the tender included the accident report contained in subsection A of the form. See Jones v. American Mut. &c. Ins. Co.,
4. In light of our holding in Division 2, supra, we do not rеach the merits of appellants’ fifth enumeration of error challenging the amount of the award of attorney fees as excessive in this case. However, as to this issue see generally Norris v. Kunes,
5. Appellants’ sixth enumeration of error is controlled adversely to them by the holding in Union Carbide Corp. v. Coffman,
6. Appellants’ seventh enumeration of error, challenging the factual basis for the board’s award of temporary total disability benefits to claimant, must fall before the “any еvidence” rule set forth in Howard Sheppard, Inc. v. McGowan,
7. Appellants’ final enumeration assigns as error the award of medical expenses incurred before claimant filed a workers’ compensation claim. The ALJ found: “A properly constituted pаnel of physicians was posted at the Hardee’s restaurant... on November 5, 1984 [, the date of claimant’s injury.] When the claimant sought medical attention from chiropractor Milner on November 16 she did not attempt to see а doctor listed on the panel because she forgot about its existence. The assistant manager, who was aware that she was attempting to see a chiropractor, did not otherwise instruct the claimant. This claim hаs been controverted in its entirety by the employer/ insurer, and I find, pursuant to Board Rule 201 (b), that the medical expenses which the claimant has incurred are therefore authorized.”
Board Rule 201 (b) provides: “The employer/insurer сannot restrict treatment of claimant to the panel physicians where they have controverted the claim.” However, “[i]t is undisputed that [claimant] sought and received treatment before filing a claim for benefits [on December 3, 1984] and thus before [appellants] had an oppоrtunity to controvert the claim. Under such circumstances, we will not construe Rule 201 (b) to prevent [appellants] from denying responsibility for the charges, thereby subverting the intent and meaning of OCGA § 34-9-201.” Scandrett v. Talmadge Farms,
Nevertheless, the record here discloses factual issues as to whether appellants had notice of claimant’s injury prior to the filing of the claim, аnd, notwithstanding said notice, failed in their obligation under OCGA § 34-9-201 (b) to take all reasonable measures to ensure that claimant understood the function of the panel of physi
Judgment affirmed■ in part; reversed in part with direction.
Notes
OCGA § 34-9-221 (e) was amended effective July 1, 1985, substituting “when” for “within 14 days after becoming” following “If any income benefits payable without an award are not paid. . . .” Ga. L. 1985, p. 727, § 7.