Avoiding Assessed Attorneys’ Fees

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Under the Workers’ Compensation Act there are a number of potential hang-ups regarding assessed attorneys’ fees that can leave an employer on the hook. Fortunately, with a little bit of know-how these can be easily avoided.

One mechanism by which a claimant may request attorneys’ fees is known as the “unreasonable defense”. In 2006 in the case of Goswick v. Murray County Bd. of Educ., the Georgia Court of Appeals noted that, “Attorney fees may be awarded upon a determination that proceedings have been defended in whole or in part without reasonable grounds. O.C.G.A. § 34-9-108(b)(1). Whether or not reasonable grounds for resisting an administrative law judge’s ruling exist is an issue of fact for the Georgia Workers’ Compensation Board to determine. However, attorney fees may not be awarded where the matter was closely contested on reasonable grounds.”

Put simply, if a party has denied a case based on unreasonable grounds under 34-9-108(b), you may be on the hook for assessed attorneys’ fees. The burden of unreasonableness is, however, is not always an easy standard for a claimant to satisfy (especially with an experienced defense attorney on your side).

Obviously, any case in which a claimant has won, there is going to be the burden of proving that an initial controversion of the claim was reasonable. So what reasons are considered to be reasonable grounds? One example is an argument over the status of an employee. L & S Constr. v. Lopez. Another such example would be where there are two different expert medical opinions. According to the case of Brigmond v. Springhill, if you’re relying upon the disagreement of two different medical experts, then you’re probably going to be in the clear.

The real key to effectively limiting exposure stemming from assessed attorneys’ fees is to make a compelling argument at hearing. Or put another way, these sorts of claims are heavily fact specific and the best way to avoid assessed fees is to fully investigate the claim, thus ensuring that you get all of the important facts in front of a judge.