Verdict - Summer 2015 - (Page 42)

> WORKERS' COMP Workers' Comp Updates BY RONALD L. HILLEY AND MIA I. FRIEDER ATTORNEY FEE LIEN not serve a copy of Form WC-108b on Current Counsel as required Monk v. Parker, 331 Ga. App. 736 (March 30, 2015) by the Board's rules. The Court of Appeals also held there was THE COURT OF APPEALS affirmed the superior court order affirm- nothing in the record to establish that Former Counsel had a vested ing the decision of the appellate division which granted the current right to any fees. counsel's motion to dismiss the former counsel's fee lien because, although he had represented claimant for eight years, former counsel BURDEN OF PROOF, STROKE had failed to serve a copy of Form WC-108b on claimant's current counsel as required by Ga. Bd. Workers' Comp. R. 108(e), and thus, Save-A-Lot Food Stores v. Amos, 331 Ga. App. 517 (March 25, 2015) former counsel failed to perfect his lien. THE COURT OF APPEALS reversed a superior court order reversing Attorney Tom Monk ("Former Counsel") began representing claim- an administrative denial of workers' compensation benefits to an ant in November 2004 for an injury which was eventually designated employee because the appellate division did not apply the wrong catastrophic. Claimant terminated Former Counsel in February 2012, standard, and there was evidence to support the appellate division's and Former Counsel filed an "Attorney Withdrawal/Lien," Form 108b ruling that the employee did not suffer a compensable, work-related via the Board's electronic filing system, but did not serve copies of injury since the employee did not show by a preponderance of the the form on the other lawyers. Claimant hired Current Counsel who evidence that he suffered a stroke, and that, even if he had, the negotiated a Stipulation and Agreement that was approved by the stroke was not caused by work stress. Board in August 2012. The Board issued a notice of mediation of the fee lien in January 2013, and the date was moved several times. Current Counsel moved for an order dismissing Former Counsel's lien for failing to serve a copy on all counsel, as required by Board Rule 108e. The ALJ found that Former Counsel had committed a technical The Court of Appeals reversed a superior court order reversing an administrative denial of workers' compensation benefits to an employee because the appellate division did not apply the wrong standard. violation of the rules in that he "[did] not deny that he failed to properly serve a copy of the Form 108b," but held the unserved parties Employee/claimant Amos sought workers' compensation benefits, were not harmed because they had received actual notice of the claiming he was disabled as the result of a work related stroke on filing through the Board's electronic filing system. Current Counsel August 5, 2011. Amos' family doctor opined that he had suffered a stroke requested a certificate of immediate appeal which the Appellate and job-related stress was a contributing factor, including tobacco use, Division granted. uncontrolled diabetes, hypoadenia, inactivity, and family history. A The Appellate Division reversed the ALJ's decision, conclud- neurologist who specialized in stroke reviewed Amos' medical records ing that Former Counsel put forth no evidence disputing Current and testified there was no evidence of stroke, and that stress is not Counsel's allegation of insufficient service of the attorney fee lien, a clear risk factor for stroke. Another neurologist who had treated notice from the Board's electronic filing system was not a substitu- Amos confirmed that he found no objective evidence of stroke. The tion of the service requirement of Board Rule 108 (e), and thus the lien ALJ denied benefits, concluding that Amos had "failed to prove by a had not been perfected. The superior court affirmed the appellate preponderance of competent and credible evidence that he suffered a division based on the "any evidence" standard of review. stroke arising out of, and in the course of, his employment" but noted Board Rule 108 (e) addresses the procedures required to file and perfect an attorney fee lien: "The attorney of record filing a lien in the order that "[e]mployee is required to meet a higher standard of proof to establish that his alleged stroke is compensable." shall serve a copy of Form WC-108b on all unrepresented parties The appellate division affirmed the ALJ's findings, but noted he and counsel." The Court of Appeals held that Former Counsel did erred as to requiring the employee to meet a higher standard of proof 42 Georgia Trial Lawyers Association

Table of Contents for the Digital Edition of Verdict - Summer 2015

President’s Message
GTLA President’s Gala
Trying a Sex Abuse Case Against a Local Church in a Conservative Venue
New Strategies and Interventions to Curtail Discovery Abuses
High-Speed Police Chases and Injured Innocent Bystanders
When One Award is Not Enough
Three Strategies to Fend off a Funding Attack
Recent Updates to Georgia Suggested Pattern Jury Instructions (Civil), July 2013 – Present
The Hidden Predator Act: How House Bill 17 Will Impact Victims’ Rights in Georgia
New Lawyers’ Corner: Trying a Low-Damage Jury Case
Professional Practice Pointers: Updates on E-filing, the Court of Appeals, and a New Traffic Division in DeKalb State
Case Updates: What’s New?
Workers’ Comp Updates
Notes: What’s New with GTLA Members
Welcome New GTLA Members!
Index to Advertisers

Verdict - Summer 2015