Disability Law

New Georgia Workers' Compensation Case - Award of Attorneys' Fees Overturned

By Jack E. Clay

On November 26, 2007, the Georgia Court of Appeals issued its decision in the case of L&S Construction v. Lopez. This somewhat short opinion involves the sole issue of whether attorneys' fees should have been awarded to the Claimant, pursuant to O.C.G.A. 34-9-108. The Court of Appeals referred to the dispute as one that was "closely contested on reasonable grounds" by the Employer/Insurer. Therefore, the Court found that attorneys' fees were inappropriate.

There is a more fundamental issue that helped guide the Court of Appeals to its decision. This case illustrates and further cements the any evidence standard of appeal in workers' compensation cases. Simply stated, the factual findings by the State Board of Workers' Compensation will not be disturbed if there is "any evidence" to substantiate the finding of fact.

This case presents negative implications for injured workers. The subject of attorneys' fees is, in my opinion, a hot button issue for attorneys representing injured workers in Georgia. Insurers sometimes controvert or deny valid workers' compensation claims. I will preface my comments by saying that if I feel the need to request a hearing, I often request attorneys' fees; however, I will have usually established strong evidence in my favor, including correspondence requesting the other side to act reasonably. While I believe that attorneys' fees should be sought and awarded in appropriate circumstances, I find that many attorneys on both sides seek attorneys' fees much too often. My theory is that some credibility is lost among members of the bar who request attorneys' fees in every contested case. All too often, attorneys cry wolf so it becomes hard to distinguish a legitimate claim for attorneys' fees from a bogus claim.

Full post as published by Georgia Law Blog on December 11, 2007 (boomark / email).