374 S.E.2d 217 | Ga. Ct. App. | 1988
Lead Opinion
On April 30, 1985, the administrative law judge (ALJ) awarded claimant Ronald McGinty workers’ compensation benefits to be paid by his employer Alfred L. Simpson & Company. The award approved the terms of the contract between the claimant and his attorney for fees amounting to one-third of the benefits awarded. However, the award declined to assess attorney fees against the employer because the ALJ found the employer had asserted a reasonable defense. The employer gave notice to the claimant’s attorney that it had filed an appeal of the award to the full board on May 30, 1985. However, the board later issued an order finding no appeal had been timely filed and further stating that even if a timely appeal had been filed, the award would have been affirmed. The claimant then moved for assessment of a twenty percent penalty, pursuant to OCGA § 34-9-221 (f), for the employer’s failure to pay the award within twenty days from the date of the award. The ALJ awarded a twenty percent penalty to the claimant and assessed attorney fees of one-third of the penalty against the employer. The employer appealed the penalty and the claimant cross-appealed, asking for greater attorney fees.
After a hearing on the appeal, the full board remanded the case to the ALJ to receive further evidence of the reasonable value of the services rendered by claimant’s attorney. On remand, evidence was presented that claimant’s attorney had expended approximately twenty-one hours, which he valued at $2,450, in pursuit of his client’s claim from the date of the initial award through the employer’s ap
The sole issue on appeal to the board was the authority of the ALJ to award a penalty and attorney fees for failure to pay the original award within twenty days. The terms of the original award of benefits and the accompanying order approving the attorney fees contract were not at issue. In fact, that award was final because it was not timely appealed. See OCGA § 34-9-102 (f). The original award of attorney fees is res judicata and cannot be modified in any subsequent proceeding between the same parties. Caldwell v. Perry, 179 Ga. App. 682 (1 & 2) (347 SE2d 286) (1986); see also Georgia Cas. &c. Co. v. Randall, 162 Ga. App. 532 (299 SE2d 118) (1982).
We note that the original award of attorney fees contains language which attempted to confer continuing jurisdiction over the award and stated the award was “subject to review and amendment at any time . . . .” However, “the State Board of Workers’ Compensation has no continuing jurisdiction over its awards except to determine a change in condition.” Hanover Ins. Co. v. Jones, 148 Ga. App. 236, 239 (251 SE2d 60) (1978). “The [board] is an administrative
The board correctly upheld the ALJ’s award of a twenty percent penalty for failure to pay the original award of benefits within twenty days.
Judgment reversed.
In essence, the award of the full board resulted in an additional recovery by the claimant due to the reimbursement of previously paid attorney fees from his attorney. Because the claimant’s attorney in a workers’ compensation claim is the beneficiary of the award of attorney fees, he becomes a “quasi-party” to the claim. Thus, the attorney has standing to appeal the award of attorney fees. However, in this case the interests of the attorney were clearly in conflict with those of his client. In such a situation, the attorney is required to disclose the conflict to his client in writing and to obtain the client’s consent for continued representation. See Standard 30 of the Standards of Conduct of the State Bar of Georgia, 252 Ga. 571, 647-648. Pursuant to the rationale set forth in the body of this opinion, we find the Workers’ Compensation Board had no authority to make the award from which the appeal is taken. Consequently, the conflict of interest which would otherwise be inherent in this case is removed and we need not remand for further proceedings to assure that the interests of the claimant have been appropriately protected.
At the time the original award was granted, the Workers’ Compensation Act allowed a party thirty days to appeal an award to the board. OCGA § 34-9-103 (a) (later amended to allow twenty days to appeal by Ga. L. 1987, p. 806, § 2). Nevertheless, even if the employer had filed a timely appeal, after twenty days from the date of the award it would still have been subject to a penalty for failure to pay benefits within twenty days. See McLean Trucking Co. v. Florence, 179 Ga. App. 514 (347 SE2d 333) (1986).
Even if the original award had been subject to revision, no evidence exists to support the board’s finding that the services rendered before and after the initial award were the “same services” or were related to securing the same recovery for the claimant. The record shows the initial award had been paid by the employer before claimant’s attorney moved for the imposition of a twenty percent penalty for untimely payment. The penalty is not part of the initial award of benefits and is not related in any way to compensation for the claimant’s injuries. It is purely a penalty against the employer, imposed as an incentive for prompt payment of adjudicated awards. Moreover, on remand to the ALJ, all evidence presented concerning the value of the attorney’s services was clearly identified as relating only to services rendered after the initial award and in pursuit of the claim for a penalty. Finally, the initial award of attorney fees found the employer was not liable for attorney fees expended in pursuit of the initial award of benefits because it had asserted a reasonable defense to the claim. To go back now and impose attorney fees against the employer for that portion of the attorney’s services which were expended in pursuit of the original claim for benefits would be contrary to OCGA § 34-9-108 (b).
Dissenting Opinion
dissenting.
We have a fundamental responsibility to supervise the practice of law in this court and to be sure that litigants are properly represented. See generally Judicial Qualifications Comm. v. Lowenstein, 252 Ga. 432, 433 (314 SE2d 107). In the case sub judice, the interests of the claimant and the claimant’s attorney are adverse. Each of them has an interest in retaining the attorney fees which the board approved originally.
The attorney has appealed, arguing that he is entitled to retain the attorney fees. Who represents the claimant? His interests are not advanced by the attorney. And we have not heard from him.
I cannot see how this court can make a ruling which is adverse to the claimant’s interests without being sure that the claimant has been given an opportunity to be heard. Accordingly, I respectfully dissent as I would remand this case for further proceedings to be sure that the interests of the claimant are properly protected.
I am authorized to state that Presiding Judge Banke joins in this dissent.
