147 Ga. App. 531 | Ga. Ct. App. | 1978
Concurrence in Part
concurring in part and dissenting in part.
Following the execution of a Form 16 agreement as to compensation by the employer and the employee, workmen’s compensation was paid to the employee. Thereafter, the employer requested a change in condition hearing, and the board ruled the employer was authorized by the board to discontinue payments inasmuch as claimant was "no longer totally disabled.”
Claimant then asked for a change in condition'' hearing, and the board directed the employer to pay workmen’s compensation for partial disability. This
I concur fully with the majority that the evidence was sufficient to support the award of the board. However, I do not agree with the majority finding that the appeal was made with reasonable grounds, and attorney fees should be stricken.
In March 1976 the company doctor released the claimant to return to work, but because the claimant felt that he was still totally disabled and unable to work he refused to return to work. A change of condition hearing followed and payments were ordered discontinued because claimant was no longer totally disabled under Code Ann. § 114-404 (as last amended by Ga. L. 1975, pp. 190,193; since amended in 1978, pp. 2220,2222, effective July 1, 1978, under the law now recognized as the Workers’ Compensation Act). This order was dated September 25, 1976.
Claimant then presented himself for light work in October of 1976 after his physician released him to light work on October 9, 1976. He was then advised by the employer that it had no light work for him to perform, contending he had quit work.
Whereupon claimant obtained other light work at another place of employment, and on November 12,1976,
There is ample statutory authority for the superior court to assess attorney fees if there is evidence to support it. Code Ann. § 114-712, supra, clearly states that the board, "or any court before whom any proceedings are brought.. .[may].. .determine that such proceedings have been brought, prosecuted or defended without reasonable ground, the whole cost of the proceedings may be assessed. against the party who has brought or defended them, and in addition such party prosecuting or defending a claim without reasonable ground may have the reasonable attorney’s fee of the opposing party assessed against him.” In Magnus Metal Division of Nat. Lead Co. v. Stephens, 115 Ga. App. 432 (2) (154 SE2d 869), this court applied the statutory authority cited in Code Ann. § 114-712. See also
It is quite clear that the superior court lacks authority to award reasonable attorney fees for the prosecution of the case before the Workmen’s Compensation Board. But it has full statutory authority to grant attorney fees consisting of the reasonable value of said services for prosecuting or defending without reasonable ground an appeal in the superior court.
The record here before this court is silent as to the specific evidence (the uncontroverted evidence presented as stated by the trial court in its findings of fact) before the superior court. It is noted that the notice of appeal ordered the clerk to omit nothing from the record. No transcript of evidence of the hearing before the trial court is found, but upon request the trial court has certified that he heard evidence as to the award of attorney fees and the amount thereof, which was not controverted. In the absence of the transcript of the evidence a finding of fact by the court based upon evidence and the resulting judgment
I therefore respectfully dissent to the direction that the assessed attorney fees against appellant be stricken.
I am authorized to state that Judge Banke joins in this dissent.
Lead Opinion
This is an appeal from an order of the superior court which affirmed an award of the State Board of Workers’ Compensation. The order also assessed attorney fees against the appellant. Held:
After having reviewed the record of this case, while the evidence was sufficient to support the award, under the any evidence rule, the award of attorney fees, under authority of Code Ann. § 114-712 (Code § 114-712, as amended through Ga. L. 1943, pp. 167-169), was not authorized. Due to the circumstances of this case which included medical evidence that the claimant was able to return to his normal employment the appeal to the superior court was not made without reasonable grounds.
Affirmed with direction that that portion of the order which assessed attorney fees against the appellant he stricken.