Sadie G. Mays Memorial Nursing Home v. Freeman
| Decision Date | 16 September 1982 |
| Docket Number | No. 64115,64115 |
| Citation | 163 Ga.App. 557,295 S.E.2d 340 |
| Parties | SADIE G. MAYS MEMORIAL NURSING HOME et al. v. FREEMAN. |
| Court | Georgia Court of Appeals |
Richard G. Kissiah, Atlanta, for appellant.
James W. Lewis, Marietta, James C. Pullin, Sec.-Treas. State Bd. of Workers' Compensation, Atlanta, for appellee.
Appellee sustained an employment-related back injury on March 14, 1980, and on March 19 gave notice of her injury to appellants, who referred her to a physician for examination. On March 24, appellants received a report from the evaluating physician indicating that appellee should not have lost any work time as a result of the March 14 injury. On the basis of that report, appellant/employer terminated appellee's employment due to three consecutive, unexcused absences. After advising appellee of the termination, appellants received from the evaluating physician a revised report indicating that appellee had not been able to work since the date of the injury. Appellant/employer sent a letter to appellee on April 29 apologizing for the termination, reinstating appellee's employment and forwarding payment of temporary total disability benefits covering the period March 14 through May 2, 1980. The letter also requested that appellee contact appellant/employer when she was released from her physician's care and able to return to work. Appellants subsequently received a medical report dated May 19 indicating that appellee would be able to return to light duty work as of May 15. Appellants filed their Form WC 2 with the board on May 23, indicating that benefits had been suspended on May 15 due to a change in condition resulting from appellee's "return to work."
A hearing was held before the administrative law judge for the purpose of receiving evidence on appellee's alleged change in condition and all other Title 114 issues. Based on all admissible evidence adduced at the hearing, the ALJ found that claimant experienced a change in condition on May 15 and that light duty work was made available to her by appellant/employer. The ALJ also assessed a $100 penalty against appellee's attorney to be paid to appellants' counsel for "outrageous conduct to the extent of leading his client through his objections and even leading his client by the nod of his head throughout her cross-examination."
Appellee took the case before the full board for de novo consideration. The board overturned the findings of the ALJ and substituted its own. The board found that appellants had not sustained their burden of showing a proper termination of benefits and that the ALJ did not have the authority to assess attorney fees against appellee's counsel. The board awarded appellee temporary total disability benefits "until properly terminated according to law," a 15% penalty pursuant to Code Ann. § 114-705(e), and attorney fees pursuant to Code Ann. § 114-712. The superior court affirmed the board's award and we granted appellants' application for discretionary appeal.
1. The board's conclusion that appellants did not properly terminate appellee's benefits is supported by the record insofar as that conclusion relates to the procedure and timing of the termination. The board found as a matter of fact that the "[f]irst and only payment for lost time was made to claimant by letter dated April 29, 1980, with accompanying check for $578.62 representing seven weekly benefits." This payment covered the period from March 14 through May 2. However, even appellants do not dispute disability prior to May 15, 1980. Consequently, the board found that appellants in fact terminated benefits on May 2, thus leaving uncontroverted compensation payments overdue for the period from May 2 through May 15, in violation of Code Ann. § 114-705(b). This finding is supported by the record. Since there was no evidence in the record indicating that these benefits could not be paid by appellants due to conditions beyond their control, the board's assessment of a 15% penalty on these overdue benefits was proper. Code Ann. § 114-705(e).
2. The board also correctly found that the ALJ acted without authority when she ordered appellee's counsel to pay appellants' counsel $100 in "punitive attorney's fees." Code Ann. § 114-707(c) sets forth the authority of an ALJ. We find no legal support either in that statutory provision or elsewhere for an order directing that one attorney pay "punitive attorney's fees" to another attorney as a result of the former's misconduct during the hearing of a case.
3. The board erred, however, in failing to address properly the issue of whether appellee had a change in condition sufficient to warrant termination of benefits. A change in condition arising from the employee's ability to return to work must be accompanied by the following: (1) a physical change for the better in the claimant; (2) an ability to return to work as a result of the physical change; and (3) the availability of work to terminate or decrease the loss of income resulting from work-related disability. Hercules, Inc. v. Adams, 143 Ga.App. 91, 237 S.E.2d 631. Appellants argue that this case meets all of the above criteria and that they should not be liable for compensation benefits after May 15, 1980. Although the ALJ agreed with appellants, the board reversed and merely concluded that the appellants had not shown that benefits had been properly terminated. The award provided that payment of temporary total disability benefits was to continue "until properly terminated according to law." The board noted, inter alia, in its findings of fact that "[i]t is uncontradicted that the claimant has never returned to work." However, the determination of whether there has been a...
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...148 Ga.App. 767, 252 S.E.2d 654; Peterson/Puritan, Inc. v. Day, 157 Ga.App. 827, 278 S.E.2d 674 and Sadie G. Mays Mem. Nursing Home v. Freeman, 163 Ga.App. 557, 295 S.E.2d 340. We are cited valid authority under the former law that return to work is not equivalent to a change in condition. ......
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