Friday, March 8, 2019

Caselaw Update - Assessed Attorney fees, Filing of Board Forms

This morning, the Georgia Court of Appeals issued a decision in the case of Garcia Trucking v. Jose Sandoval. While there is no new standard announced in this decision, there are some practical lessons to be drawn from it, most especially in light of the changes to the Board Rules regarding filing of the WC-1 and decisions regarding whether to accept or controvert your cases. First, the decision: Sandoval reported an injury that occurred in October 2014. There is a dispute as to when an injury was reported but the employer knew or had reason to suspect and investigate a possible injury given that Sandoval was at the time missing work. There was dispute as to whether Sandoval had a pre-existing lower back problem and received some degree of medical care for that condition prior to the injury. At trial the ALJ found the claim to be compensable. The claimant was awarded assessed attorney fees against the employer for unreasonable defense of the claim. The First Report of Injury denying the claim was filed more than 21 days from the notice of injury and so penalties were assessed for that failure but attorney fees were not awarded for the late filing of the WC1. On appeal the Appellate Division of the State Board of Worker’s Compensation pointed to the factual disputes and the closely contested issued in its decision to uphold the filing of compensability but to reverse the award of assessed fees. Sandoval appealed to the Superior Court seeking to have the assessed fees reinstated. The Superior Court obliged, citing an error of law in which the State Board’s failure to cite evidence about the late filing of the WC1. The Superior Court reasoned that failing to cite evidence meant that there was no evidence and so the Superior Court was not bound by the “any evidence” standard of review. The Court of Appeals reversed the Superior Court , reinstating the award of the State Board and denying Sandoval’s request for assessed fees. The Court noted that the ALJ assessed fees for unreasonable defense and not for the late filing of the WC1 so when the Appellate Division of the State Board found the defense to have been reasonable, the ALJ’s award, at least as to attorney fees, was reversed. In other words, there WERE facts in evidence upon which the Board based its findings to deny the assessment of fees. The Court made special notice that the assessed fees were NOT based on the late filing of the First Report of Injury. Second, practice pointers from the decision: 1) Factual determinations are initially made by the ALJ but can be accepted or rejected by the State Board’s Appellate Division. If you don’t get the facts in your favor before you get to the Superior Court you need an error of law to change the decision. As a practical matter, this means that most Superior Court appeals are going to be bound by the any evidence rule. 2) If the Superior Court reverses a decision, chances are that the Court of Appeals will accept the Application for Discretionary review if there is evidence to support the award of the State Board. 3) You and your Counsel must know the difference between a factual issue (disagreeing with HOW the Judges viewed the evidence) and a legal issue (failure to apply the correct standard) 4) Recent changes in the Requirements for filing the WC1 and in the necessity to make a decision on accepting the claim can serve as an independent basis for an assessment of attorney fees and will be used by Counsel for the Injured worker any time that it is applicable. a. File the WC1 within 21 days of the notice of injury. For Employers this means reporting the injury to your carrier as soon as is possible and working diligently to assist in the investigation b. If you are uncertain as to whether the claim is or should be compensable, mark the WC1 as medical only, file it within 21 days from notice of the injury and provide authorized care while the investigation is ongoing c. If you decide later that the claim should not be compensable, file a WC3 to controvert. Call on us if we can be of assistance.

"Skedsvold and White
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