Georgia Law Blog

    In America, litigants are generally expected to pay their own attorneys’ fees. In many other countries there is a looser pay system where by the losing party has to pay the winning party’s attorneys’ fees. Of course, they are countless exceptions to this general rule.

    As an attorney representing injured workers throughout Georgia, I often find that insurance companies act unreasonably. Fortunately, there are several ways in which attorneys who represent worker’ compensation clients can get attorneys fees in these cases. I was asked recently by a fellow attorney to post a list of every possible insurer wrong that can get a workers’ compensation claimants lawyer assessed attorneys' fees.  While I may not know every way to get attorneys fees assessed against an employer or insurance company in a Georgia workers’ compensation case, here are a few recommended methods and strategies.

    The basic statutes in Georgia’s workers’ compensation law that allows attorneys’ fees are O.C.G.A. § 34-9-108 and O.C.G.A § 34-9-221. Many know about the traditional ways to get attorneys fees under 34-9-108. This section provides that attorneys fees can be awarded to either party if the case is prosecuted or defended without reasonable grounds. Second, I frequently request attorneys fees under O.C.G.A. § 34-9-108(b)(2) and O.G.C.A. § 34-9-221. Under 34-9-108(b)(2), attorneys fees can be awarded if any provision of O.G.C.A § 34-9-221 is not followed. Fortunately for injured workers and their attorneys, O.C.G.A § 34-9-221 is filled with pit falls for employers and insurance companies. For example, if income benefits are not paid when due on the 21st day after the employer has knowledge of the injury or death, attorneys fees can be requested. Also, if weekly checks are not sent properly, which is a very common problem that my clients have to deal with frequently, you can request awarded attorneys fees. Perhaps my favorite basis for attorneys fees comes under O.C.G.A § 34-9-221(d) which requires that if an employer controverts or denies an injured workers right to compensation, it must file a controvert on or before the 21st day after knowledge of the alleged injury or death. Often times, Employers/Insurers fail to file controverts altogether.

    Another good strategy to employees is to request civil penalties against an employer and insurance company. The civil penalties range from $100.00 to $1,000.00 per violation. While claimants' attorney and clients do note receive fines leveed as civil penalties, they is a strong deferent to employers and insurance companies. A claimants attorney would be wise to carefully review Board Rule 61. For example, Board Rule 61 requires that a WC-4 Case Progress Report be filed within certain time-frames. In one of my cases where an insurer was acting unfairly, I filed a motion outlining their failure to file the form WC-4 and requested civil penalties and attorneys fees. I believe that a motion can be brought if an employer/insurer fails to comply with any of the form filing requirements outlined in Board Rule 61. Furthermore, attorneys are free to request civil penalties and attorneys fees for almost any Rule 61 violation on behalf of the employer/insurer. Another basis for civil penalties and attorneys fees is the failure of an insurer to respond properly to a form WC-102 requests for documents. Yet another opportunity for a claimants attorney to seek civil penalties and attorneys fees is when an insurer fails to sign counsel to a case within 21 days after receiving a hearing notice pursuant to Board Rule 102(b)(2). I know a attorney who routinely files a motion in this regard when an attorney is not assigned by an insurer in a timely fashion. Of course, this is not a list of ways in which attorneys fees can be obtained. It is my personal belief that if more attorneys pursued these matters, insurers would be more likely to comply with the law.