Opinion
28659.
DECIDED MARCH 18, 1941.
Appeal; from Baldwin superior court — Judge Jackson. June 25, 1940.
C. B. McCullar, for plaintiff.
Neely, Marshall Greene, for defendant.
1. The compensation payable to the dependents of a deceased employee, as provided in the Code, § 114-413 (b), which is 85 per cent. of the compensation provided in § 114-404 for total disability, is 85 per cent. of one half of the employee's average wages. Section 114-404 as amended by the act of 1937 (Ga. L. 1937, pp. 528, 531), which provides that the weekly compensation payable thereunder is equal to one half of the employee's average weekly wages, but not more than $20 per week, does not authorize compensation in the amount of $20 per week where one half the weekly wage is less than $20 per week, but authorizes compensation only in the amount of one half of the average weekly wages. Where one half the average weekly wage is $16, the dependant is not entitled to more than 85 per cent. of $16 which is $13.60.
2. Section 67 of the compensation act (Code, § 114-603), which is the only section providing for the assessment of damages against an employer in increased compensation and the fees of counsel for the claimant, does not authorize an assessment of damages and attorney's fees on account of a refusal or wilful neglect to pay the compensation provided for in the act to one entitled thereto.
3. Under the facts of this case the claimant was not entitled to an award of attorney's fees against the employer and insurance carrier, under the Code, § 114-712, for defending "without reasonable ground" her claim for compensation.
4. The Code, § 114-712, does not authorize this court, on writ of error, to assess attorney's fees or damages against a plaintiff in error for a frivolous appeal from a decision of the superior court affirming an award of the Industrial Board.
DECIDED MARCH 18, 1941.
Mrs. W. L. Dunn filed with the Industrial Board a claim against the Claussen-Lawrence Company Inc., and the American Mutual Liability Insurance Company, for compensation under the workmen's compensation law, for the death of her husband. On August 25, 1938, the claimant, through her attorney, filed with the Industrial Board a "motion to assess attorney's fees and penalties . . because of the misconduct and stubbornly litigious attitude of this insurance carrier in failing and refusing to obey the workmen's compensation laws of Georgia." From the evidence on the hearing the following appears: The husband of the claimant was injured on July 25, 1938, and died as a result thereof on July 27, 1938. It was admitted that while he was at work he sustained an accident from which he died, that the claimant was entitled to compensation therefor as provided by the compensation laws of Georgia, and that no compensation had been paid to her. Shortly thereafter the insurance carrier transmitted to the claimant, to be signed by her, an agreement for compensation, in which the insurance carrier proposed to pay to the claimant for the death of her husband $13.60 weekly (being 85 per cent. of one half of $32, the weekly wages of the workman at the time of his injury and death), with a stipulation therein to the effect that should it be determined by the courts that the claimant was entitled to only $12.75 per week, the insurance carrier should receive credit on the amount of compensation then unpaid for the difference between $13.60 and $12.75 for the number of weeks during which the company had actually paid to the claimant $13.60 per week. The claimant refused to execute the agreement, and her attorneys communicated with the insurance carrier to this effect, and insisted that the claimant was actually entitled to receive, under the amendments to the compensation act, $20 per week, and certainly not less than $16 per week. Thereupon, between August 1 and August 29, 1938, there was an interchange of correspondence between the Industrial Board, counsel for the claimant, and the insurance carrier, relatively to this claim and the execution of an agreement for compensation. It appeared from the evidence that because of the difference between the parties as to the amount of weekly compensation to which the claimant was entitled, and the manner of its payment, the agreement was not executed and compensation for the death of the husband was not paid. The claimant testified that her husband died on July 27, 1938, that a representative of the insurance carrier called to see her on July 29, that she gave him all the information he requested, and that the reason she did not sign the agreement for compensation submitted to her by the insurance carrier was because of the stipulation referred to above.
The director awarded compensation of $13.60 per week for 300 weeks from the date of the accident, but denied the motion of the claimant's counsel for penalty and attorney's fees. In his award the director stated as follows: "The misunderstanding or confusion apparent in this claim, and which necessitated a hearing, evidently arose over the fact that the compensation act was amended by the legislature to allow employees half their weekly wages, but not to exceed the maximum of $20 per week, but this change did not affect the law relating to the payments to dependents of deceased employees, as embodied in section 114-413(b) and 114-413(d), which provides the sum of $12.75 as the maximum for such dependents. There appear no facts that would in any way justify any penalty against the insurance carrier, as insurance carrier did not delay except for the purpose of trying to find out the manner in which to pay the compensation, but the claimant became troubled and discontented and sought the services of a lawyer. Her lawyer, Hon. C. B. McCullar, has appeared in her behalf, represented her, and argued the contentions raised. He has requested that the Industrial Board fix the amount of his fee. Liability for the benefits to the widow and her minor dependents is admitted by the insurance carrier." The claimant appealed to the board, on the grounds that she was entitled to an award of penalty and attorney's fees, and that she was entitled to more than $13.60 per week, to wit, $20 per week. The board affirmed the award and the claimant appealed to the superior court on the same grounds. The court affirmed the award of the Industrial Board and the claimant excepted.
The insurance carrier offered to pay to the claimant $13.60 per week for three hundred weeks, and submitted to the claimant an agreement to that effect. However, the insurance carrier inserted in such proposed agreement a stipulation that in the event it should be determined by the courts that the claimant was not entitled to 85 per cent. of one half of $32, the weekly wages of the employee at the time of the accident, but was entitled to only $12.75 a week, such carrier would be entitled to suspend the payment of $13.60 per week and to immediately begin payment to the claimant of $12.75 a week, and to take credit for all the excess paid by it to the claimant. Upon her refusal to execute this agreement the insurance carrier declined to pay compensation except under order of the Industrial Board. The claim thereafter came on to be heard; and it being admitted that the claimant was entitled to compensation as a total dependent after the death of her husband, the director awarded compensation to her, and directed that she be paid $13.60 per week for three hundred weeks. There was no exception to this award by the employer and the insurance carrier, but the claimant appealed to the board and contended that she was entitled to compensation in excess of $13.60 a week, namely, $20 a week. The compensation act embodied in the Code, § 114-413 (b), provides for the payment of compensation to dependents of a deceased employee, as follows: "The employer shall pay the dependents of the deceased employee, wholly dependent on his earnings for support at the time of the injury, a weekly compensation equal to 85 per cent. of the compensation which is provided for in section 114-404 for total disability, for a period not exceeding 300 weeks from date of injury." Section 114-404, referred to in the above-quoted section, as amended by the act of March 30, 1937, supra, provides: "When the incapacity to work resulting from an injury is total, the employer shall pay or cause to be paid, as hereinafter provided for, to the employee during such total incapacity a weekly compensation equal to one half of his average wages, but not more than $20 per week nor less than $4 per week." The last sentence in section 114-413 (d), which provides for payment to dependents where the employee drew compensation before his death, is as follows: "The total compensation to be paid to all dependents of a deceased employee shall not exceed in the aggregate $12.75 per week."
The employee was earning a weekly wage of $32 at the time of the accident. He died within two days from the date of the accident, and hence was paid no compensation for the injury. Therefore, under the above provisions of the compensation law, it appearing that the claimant was the widow of the deceased and wholly dependent upon him, she was entitled to receive "a weekly compensation equal to 85 per cent. of the compensation" provided for in the Code, § 114-404, for total disability' (which is one half of the average wages of the employee not in excess of $20 a week) "for a period not exceeding 300 weeks from date of injury." Any question as to whether the claimant was not entitled to receive in excess of "$12.75 per week," under the last sentence of § 114-413 (d), is not in this case, for the reason that the employer and the insurance carrier have not appealed from the award of the weekly sum of $13.60 to the claimant. The director awarded to her compensation of $13.60 per week for three hundred weeks, $13.60 being 85 per cent. of $16, which is one half of $32, the weekly wage earned by the employee at the time of his death. She was not entitled to any sum in excess thereof, under the undisputed facts, and the contention of her counsel that she was entitled to $20 a week for 300 weeks, which would be in excess of 85 per cent. of one half of the weekly wages which the employee was earning at the time of the accident, is without merit. It was urged, as a ground of appeal, that there should have been assessed against the employer and the insurance carrier attorney's fees and penalty. Counsel for the claimant had previously filed before the board a "motion to assess attorney's fees and penalties . . because of the misconduct and stubbornly litigious attitude" of the insurance carrier "in failing and refusing to obey the workmen's compensation laws of Georgia." The director did not err in denying this motion and in refusing to assess attorney's fees and penalty against the insurance carrier. There is no evidence that the insurance carrier was guilty of any misconduct or was stubbornly litigious in failing to pay compensation to the claimant in excess of $13.60 a week. There was no misconduct or stubborn litigiousness on the part of the insurance carrier in failing to pay compensation to the claimant under an agreement unless she would sign the agreement with the stipulation above referred to incorporated therein.
In the Code, § 114-603 (section 67 of the workmen's compensation act), which is the only section providing for the assessment of damages in increased compensation in addition to attorney's fees, it is provided as follows: "Every employer accepting the compensation provisions of this title shall file with the Department of Industrial Relations in form prescribed by the Department, annually or as often as the Department in their discretion may deem necessary, evidence satisfactory to the Department of his compliance with the provisions of the preceding section and all other sections relating thereto. If such employer shall refuse or wilfully neglect to comply with these provisions, the Department of Industrial Relations hearing any application for compensation by an injured employee of such delinquent employer may assess against such employer compensation in an amount greater by 10 per cent. than that provided for in this law, and shall also fix a reasonable attorney's fee for the representative of the employee to be paid by the employer in addition to the increased compensation." This section has no application to a case where the employer has accepted the provisions of the compensation act and complied with the requirements thereof as to filing with the board the necessary form prescribed, or other evidence satisfactory to the board of the employer's compliance with the act. This section of the act embodies a penalty, and must be strictly construed, and the penalty therein provided for can be assessed only where the employer, through refusal or wilful neglect, has failed to comply with the provisions of the act as expressed therein. This section does not provide that an employer or insurance carrier shall be liable to have assessed against it the penalty and attorney's fees because of a refusal or wilful neglect to pay the compensation provided for in the act to one entitled thereto. See Turner v. Albany Coca-Cola Bottling Co., 32 Ga. App. 518 ( 123 S.E. 910). Furthermore, it does not appear as a matter of law that the employer and the insurance carrier "defended without reasonable ground" the proceedings for compensation (under the grounds urged by counsel for the claimant), and the director did not err in failing to assess attorney's fees against the employer and insurance carrier. Code, § 114-712, as amended by Ga. L. 1937, pp. 528, 535. It follows that the superior court did not err in affirming the award of the Industrial Board approving the award of the single director.
A motion is made in this court by the defendants in error to assess damages against the plaintiff in error pursuant to the provisions of § 61 of the act, which provides: "If the Industrial Board or any court before whom any proceedings are brought under this title shall determine that such proceedings have been brought, prosecuted, or defended without reasonable ground, the whole cost of the proceedings may be assessed against the party who has brought or defended them; and in addition such party prosecuting or defending a claim without reasonable ground may have the reasonable attorney's fees of the opposing party assessed against him." Code, § 114-712. This provision of the compensation law authorizes the Industrial Board or a court to assess such attorney's fees only in cases which are brought to the court "under this title," meaning under and by authority of the compensation act. Cases brought before the Industrial Board and to the superior court on appeal from the Industrial Board are brought under the authority of this act; but cases brought to the Court of Appeals on exceptions to judgments of the trial judges in passing on appeals from the Industrial Board are not cases brought by virtue of the provisions of the compensation act, but are cases brought to the Court of Appeals under the constitution of this State, authorizing the Court of Appeals to review decisions of the superior courts in certain described cases. Therefore the motion of the defendants in error that this court assess damages in the nature of "reasonable attorney's fees of the opposing party" against the claimant, under authority of the above section of the compensation act, is entirely without merit, and is denied.
Judgment affirmed. Sutton and Felton, JJ., concur.