Atlanta Workers Compensation Law : Atlanta Workers' Compensation Lawyer & Attorney : Seth Bader Law Firm : Construction Accidents, Repetitive Motion Injuries, Disability : Atlanta, Marietta, Roswell, Georgia

Workers' compensation attorneys usually handle cases on a contingent fee basis.  This means you don't pay your attorney's fees out of pocket, but instead that your attorney receives a fee if and when he or she helps you recover benefits or a cash settlement. 

According to Workers' Compensation Board Rule 108, workers' compensation attorneys in Georgia can charge a maximum contingent fee of twenty-five percent (25%) of the total award.

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You may terminate your attorney for any reason; but if you are planning to, keep in mind that he or she likely will be entitled to recover a portion of the proceeds from your case once it is resolved.  Pursuant to Board Rule 108, your attorneys (prior and current) be allowed to recover a combined fee of more than twenty-five percent (25%) of the total award.

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(a)  The party submitting the stipulation shall:

(1)  file the original with a copy for each party to the agreement; if filing electronically, file one original and no copies.

(2)  at the top page of each stipulation list the names, addresses, and telephone numbers of all parties to the agreement, the ICMS Board claim number(s) of the employee, the dates of accident covered by the agreement where a Board file has been created by a Form WC-1 or Form WC-14, the names and addresses of all attorneys with a designation of which parties they represent, and the Federal tax identification number of the employee's attorney.  For dates of accident where a Board file has not been created but covered by the stipulation, such dates of accident shall only be listed in the body of the agreement;

(3)  submit 9 1/2 x 12 ½ envelopes addressed to each party to the agreement; if filing electronically, do not submit envelopes.

(4)  attach a copy of the Form WC-1 for each date of accident covered by the settlement;

(5)  attach a copy of the fee contract of counsel for the employee/claimant; and,

(6)  attach the most recent medical report or summary which describes the medical condition of the employee, including a very brief statement of the surgical history, if any, if that history is not already specified within the stipulation.  The entire medical record should NOT be attached.

(7)  when submitting a stipulation for approval by electronic mail, the stipulation must be submitted separately from supporting documentation.

(8)  approval of a stipulation may be sent by electronic mail to the parties and attorneys of record.  Whenever electronic transmission is not available, approval will be sent by mail.

(9)  for all stipulations, at the top of the first page of the stipulation, the first five inches shall be left blank for the approval stamp;

(10)  All stipulations shall be limited to no more than 25 pages, including supporting documents, unless prior approval is given by the Board or the Settlement Division.

(b)  A stipulation which provides for liability of the employer or insurer shall:

(1)  state the legal and/or factual matters about which the parties disagree; and,

(2)  state that all incurred medical expenses which were reasonable and necessary have been or will be paid by the employer/insurer.  If the parties have agreed for medical treatment to be provided for a specific period in the future, then the stipulation must so state, and must further specify whether the agreement is limited to certain specific providers, and whether those providers may refer to others if needed.  Furthermore, the stipulation shall provide that the parties will petition the Board for a change of physician in the event that a specifically named physician is unable to render services, and the parties cannot agree.  If the stipulation does not contain a provision that medical expenses may be incurred for a specific period in the future after the approval of the stipulation, then the stipulation must contain a statement which explains why that provision is not necessary.

(c)  The insurer shall certify that it has complied with

by having sent a copy of the proposed settlement to the employer prior to any party having signed it.

(d)  If the agreement provides for a structured settlement to be paid by a party other than the employer or the insurer, then the stipulation must contain a provision that the employer and insurer will be liable for the agreement in the event of the default or failure of that third party to pay.  In addition, if the stipulated settlement agreement provides for a Medicare Set-Aside (MSA), the stipulated settlement agreement shall contain a provision as to the actual cost of the MSA.

(e)  Unless otherwise specified in the attorney fee contract filed with the Board and in the terms of the stipulation, the proceeds of the approved stipulated settlement agreement shall be sent directly to the employee or claimant.  If an attorney is to be paid, the stipulation must state the amount of the fee, and itemize all expenses which should be reimbursed. Further, an attorney shall not receive an attorney’s fee as a portion or percentage of any medical treatment or expenses, or any money designated for medical treatment or expenses.  Expenses and attorney fees shall be paid in a check payable to the attorney only, and proceeds due to the employee shall be paid in a check payable to the employee only and the attorney shall certify that the expenses comply with Rule 1.8(e) of the Georgia Rules of Professional Responsibility and Board Rule 108.

(f)  A Form WC-1 shall be filed with every no-liability stipulation for each date of accident covered in that stipulation.  In all no-liability settlements where the claimant is represented by counsel, the attorney must submit a Form WC-15 certifying that any fee charged is fair and reasonable and does not exceed twenty five percent as allowed under the provisions of O.C.G.A. § 34-9-108 and Board Rule 108.

(g)  Stipulations which contain waivers or releases of causes of action over which the Board has no jurisdiction will not be approved by the Board.

(h)  The Board may hear evidence or make informal inquiry regarding any settlement.

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(A)  Practice of Law.

(1)  Attorneys Entitled to Practice before the Board: Rule 1-203 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia, as now in effect or as hereinafter amended, is controlling as to the practice of law before the Board and its Administrative Law Judges.

(2)  Any ex parte communication, including electronic mail, with an Administrative Law Judge or the Board in a pending claim is prohibited.

(3)  Attorneys, not licensed in the State of Georgia, shall comply with Uniform Rule of Superior Court 4.4 addressing Admission Pro Hac Vice.

(4)  On all filings with the Board, attorneys shall place their Georgia bar number. In addition, no attorney shall submit any form that has been discontinued or altered.  A violation of this rule may result in the rejection of the filing with the Board, and/or the imposition of a civil penalty under O.C.G.A. § 34-9-18.

(5) Service upon a party or attorney of any form, document, or other correspondence shall be by electronic mail.  Whenever electronic mail is not available, service shall be by U.S. Mail.

(B)  Reporting Requirements:

(1)  The address of record of an employee shall be that address shown on the most recent document filed with the Board.

(2)  A party shall provide notice to the Board of the intent to obtain legal representation and the name of its legal representative, if any, within 21 days from the date of the hearing notice, subject to an assessment of penalties for failure to comply.

(3)  The address of record of an employer shall be the address shown on the Form WC-1, the address on file with a Licensed Rating Organization filed by the insurer on behalf of the employer, or the principal office of the employer within the State of Georgia.

(4)  Any party requesting a hearing shall furnish the correct name and current address of the employee, the employer, and the insurer/self insurer and third party administrator at the time the hearing is requested.

(5)  An attorney who represents a party other than an employee or a claimant in a contested matter must file a notice of representation on a Form WC-102B with the Board, and must serve a copy on all counsel and unrepresented parties.

(6)  An attorney who represents an employee or claimant in a contested matter shall file a fee contract as notice of representation and must serve a copy on all counsel and unrepresented parties.  The contract must be dated, conform to Rule 108, and both the attorney and the client must sign the contract.

(C)  Postponements, Leaves of Absence, and Legal Conflicts:

(1)

(a)  Postponement:  If a hearing is on a calendar for the first time, and if all parties agree to postpone it to be rescheduled, they may obtain the postponement without consulting the Administrative Law Judge before whom it is scheduled, absent prior specific instructions from the judge to the contrary.  This agreement must be communicated to the judge no later than 4:30 p.m. of the business day immediately preceding the hearing by the party who requested the hearing, or by any other party by agreement.  Otherwise and generally, a hearing shall be postponed only upon strict legal grounds, or at the discretion of the Board or an Administrative Law Judge.  For a case that has already been postponed, a second or subsequent request by counsel to postpone the case from a calendar must be made no later than 4:30 p.m. on the business day immediately before the scheduled hearing, and the request must be approved by the Administrative Law Judge.  For a case to be removed from the calendar with no reset, this notification, as with a postponement request, must be made no later than 4:30 p.m. on the business day immediately before the scheduled hearing.  If the judge determines that the case is not ready for trial at this time, the claim may be removed from the calendar, not to be reset until the parties certify that discovery is complete and the case is ready to be tried.

(b)  Whenever the pending hearing issues resolve or a case settles prior to a scheduled hearing date, the parties or attorneys shall immediately notify the Board or assigned Administrative Law Judge:

(1)  first, by telephone call; and

(2)  if so instructed by the Trial Division, by subsequent written or electronic confirmation.

(c)  Any party or attorney who fails to follow the cancellation, postponement, or rescheduling procedures as outlined above in sections (C)(1)(a) & (b), and who is unable to show good cause for such failure, may be subject to civil penalties, assessed attorney's fees, and/or costs, including but not limited to the cost of the court reporter.

(2)  Leave of absence.  In the event that an attorney wishes to obtain a leave of absence from the Board, the request should be submitted on a Form WC-102C and mailed to the Atlanta office of the State Board of Workers' Compensation or filed on-line via ICMS.  The granting of a leave of absence will not apply to cases already calendared on the date the leave is signed, and will apply only to court appearances and mediations.  In the event that leave is requested for a date already calendared, the attorney must request a postponement from the Administrative Law Judge, with permission of opposing counsel or by conference call, prior to the hearing or mediation.

(3)  For the purpose of resolving requests for continuance based upon legal conflict, Rule 17.1(B)(4) of the Uniform Rules of the Superior Courts shall apply.  A conflict letter shall be served upon opposing counsel and unrepresented parties no later than seven days prior to the date of conflict but shall not be filed with the Board unless or until such conflict letter is requested by an Administrative Law Judge or the Board.  The action which was first filed shall take precedence, subject to judicial discretion.

(D)  Motions and Interlocutory Orders Pending a Hearing:

(1) 

(a)   All motions and objections shall be made on Form WC-102D, with the exceptions of motion for reconsideration and request for a change of physician/additional medical treatment under Board Rule 200(b)(1).  Motions and objections, including briefs and exhibits, shall be limited to 50 pages, unless otherwise approved by an Administrative Law Judge or the Board.  When attaching documents as evidence to motions and objections, do not use tabs to separate documents.  Any party or attorney filing a motion or objection shall also serve a copy on all counsel and unrepresented parties, along with supporting documents, including a separate certificate of service identifying the names and addresses served.

(b)  When filing a motion for reconsideration, the parties or attorneys shall:

(1) immediately notify the Board or assigned Administrative Law Judge by telephone call;

(2)  use the ICMS doc-type labeled motion for reconsideration;

(3)  limit their motion to 20 pages, including briefs and exhibits, unless otherwise permitted by the Board or an Administrative Law Judge; and

(4)  serve a copy on all counsel and unrepresented parties, along with supporting documents, including a separate certificate of service identifying the names and addresses served.

(2)  Prior to filing a motion, including requests for documents made pursuant to Rule 102(F)(1), the moving party shall confer with the opposing party, or counsel if the party is represented, in a good-faith effort to resolve the matters involved.

(3)  A party objecting to a motion shall respond on a Form WC-102D, which must be filed with the Board within 15 days of the date of the certificate of service on the request, and shall serve a copy on all counsel and unrepresented parties.

(4)  Whenever the pending issues resolve, in whole or in part, in a motion, the parties or attorneys shall immediately notify the Board or assigned Administrative Law Judge: (1) first, by telephone call; and (2) if so instructed, by subsequent written or electronic confirmation.  Any party or attorney who fails to follow this procedure, and who is unable to show good cause for such failure, may be subject to civil penalties and/or assessed attorney's fees.

(5)  An Administrative Law Judge may issue an interlocutory order suspending or reinstating payment of weekly benefits to an employee pending an evidentiary hearing.

(6)  Where the issue is which of two or more employer/insurers is liable, the Administrative Law Judge or the Board may issue an interlocutory order directing the employer or one of the insurers to pay weekly benefits and medical expenses until the determination of liability of an insurer has been made.  Reimbursement may thereafter be ordered where appropriate.

(E)  Conduct of Hearings:

(1)  No person shall, during the course of a proceeding before an Administrative Law Judge or Director, engage in any discourteous or disruptive conduct.

(2)  Any violation of the Georgia Rules of Professional Conduct of the State Bar of Georgia may subject an attorney to the assessment of a civil penalty pursuant to O.C.G.A. § 34-9-18 and referral to the State Bar of Georgia for disciplinary action.

(3)

(a)  Prior to the commencement of a hearing, the parties shall consolidate any and all records, including but not limited to medical records, and any other documentary evidence to be admitted at a hearing in order to avoid any repetition and duplication.

(b)  All medical evidence regarding the treatment, testing or evaluation of the claimant for the accident which is the subject of the hearing should be exchanged between the parties as soon as practicable, but no later than ten days prior to the hearing, and all depositions should be completed prior to the hearing.  Failure to exchange such evidence within ten days of a hearing may, in the discretion of the Administrative Law Judge or the Board, result in:

(1)  the imposition of civil penalties,

(2)  award of assessed attorney fees,

(3)  a continuance,

(4)  award of costs,

(5)  award of witnesses fees and expenses, and/or

(6)  in limited circumstances, the exclusion of evidence at the hearing.

(c)  If the amount of the average weekly wage is in dispute, counsel shall exchange written contentions with respect to their methods of calculation at least ten days prior to the hearing, and shall present the written contentions to the Administrative Law Judge at the commencement of the hearing.

(d)  If accompanied by an affidavit, a written laboratory test result report is admissible into evidence for purposes of authenticity only. Any other evidentiary objections can be raised by the parties in motions or at evidentiary hearings.

(e)  Any challenge to the testimony of an expert under O.C.G.A. § 24-9-67.1 shall be made not later than 15 days prior to the hearing. Failure to raise a timely challenge shall result in waiver of the challenge unless otherwise agreed to by the attorneys and the Administrative Law Judge.

(4)  Parties may be allowed to make arguments either by the filing of briefs within the time set by the Administrative Law Judge at the hearing, by oral argument at the conclusion of the presentation of evidence at the hearing, or both.  Oral argument shall be limited to five minutes for each party.  Briefs shall be limited to 30 pages, unless otherwise approved by an administrative law judge or the Board.

(5)  It is the policy of the Board to encourage the parties to close the record at the conclusion of the hearing.  The parties are expected to make diligent efforts to present all the evidence at the hearing, without the need for the record to remain open.

(6)  Hearing Transcript: Any Administrative Law Judge is authorized to relieve the court reporter of the duty of transcribing the record of proceedings.  The record shall be transcribed and submitted to the Board or the superior court if there is an application for review of an appeal.  The appellant shall serve a copy of the application for review or appeal on the court reporter at the same time it is served on all other persons.

(7)  Notices of hearing may be sent by electronic mail to the parties and attorneys of record.  Whenever electronic transmission is not available, a notice of hearing will be sent by U.S. Mail.

(F)  Discovery and Submission of Evidence:

(1)  Prior or subsequent to a request for hearing being filed in a claim, the parties shall be entitled to receive from each other without cost the documents specified in Form WC-102.  These documents shall be provided within 30 days of the date of the certificate of service, subject to an assessment of penalties for failure to comply. Neither the request nor response shall be filed with the Board.

(2)  Discovery filed pursuant to the Civil Practice Act shall only be permitted after a hearing has been requested in the claim, or as otherwise specified in these rules.

(3)  Discovery documents, including but not limited to depositions, interrogatories, and notices to produce, shall not be filed with the Board until such time as they are tendered in evidence in a proceeding before the Board.  Correspondence between the parties shall not be filed with the Board.

(4)  All documents, transcripts, exhibits, and other papers filed with the State Board of Workers' Compensation shall be submitted on 8- 1/2 by 11 inch paper only.  Sufficient space shall be left at the top of all documents (at least one and one-half inches) so that all information will remain readable after the documents have been filed.  Copies of items offered in evidence at a hearing must be properly identified and tendered to opposing parties at the hearing.  When submitting any documents as evidence, do not use tabs to separate documents.

(G)  Written Responses: The filing of all written responses will be governed in accordance with O.C.G.A. § 9-11-6(e).

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The attorney's fee shall not exceed 400 weeks of income benefits and may be terminated or suspended sooner as provided by law or at the Board's discretion. The Board may, in its discretion, approve an attorney’s fee for a period of greater than 400 weeks so long as the attorney fee is not in excess of 25% of the claimant’s weekly benefits.

(a)  Attorney fee contracts.  Immediately upon being employed by an employee or claimant in a matter which is before the Board, the attorney shall file a contract of employment and fees with the Board. This contract shall include the following attorney typed information: (1) name, (2) bar number, (3) firm name, (4) address, (5) phone number, (6) fax number, (7) email address, and (8) Board claim number.  If the Board claim number is not known, this contract shall include the employee's first name, last name, social security number, and date of injury.  Finally, all contracts shall include the employee's name and address.  This contract shall be dated, and shall be signed by both the attorney and the client, and shall include the following statement with respect to an accident occurring on or after July 1, 1992:

This contract is subject to the approval of the State Board of Workers' Compensation, and no fee of more than $100.00 shall be paid under the contract unless approved by the Board. No contract shall be filed with the Board which provides for a fee greater than 25 percent of the recovery of weekly benefits.  Any contract with these terms, absent compelling evidence to the contrary, shall be deemed to represent the reasonable fee of the attorney.

With respect to an accident occurring before July 1, 1992, the contract shall include the following statement:

This contract is subject to the approval of the State Board of Workers' Compensation, and no fee of more than $100.00 shall be paid under the contract unless approved by the Board.  No contract concerning an accident occurring before July 1, 1992, shall be filed with the Board which provides for a fee greater than 25 percent of the recovery of weekly benefits without a hearing, 30 percent of the recovery of weekly benefits with extensive discovery preparatory for a hearing, and 33-1/3 percent of the recovery of weekly benefits after a hearing.  Any contract with these terms, absent compelling evidence to the contrary, shall be deemed to represent the reasonable fee of the attorney.

An attorney who requests approval of his or her fee contract when there is no pending litigation shall file with the Board Form WC-108a.  When an attorney requests approval of his or her fee contract after a hearing notice has been issued and after the dispute has been resolved, that attorney shall file Form WC-108a with the Administrative Law Judge who issued the hearing notice.

(b)

(1) The value of the services of the attorney may be agreed upon by the parties subject to approval of the Board.

(2) Any offer to make payment if the party waives a claim for attorney's fees under paragraph (2) or (3) of subsection (b) of O.C.G.A. § 34-9-108, or any agreement to waive a claim for attorney's fees as a condition to payment of income or medical benefits, where the only consideration for such waiver is the commencement of income or medical benefits, shall be void ab initio.

(3) No party shall be required to pay an attorney for services for which the fee was assessed against the opposing party. The Board, if deemed appropriate, may approve an attorney's fee which combines fees assessed against an opposing party and fees paid pursuant to approval of an attorney fee contract, provided that the claimant receives a credit for the assessed fee.

(4) An attorney advertising to render services to a potential workers' compensation claimant must intend to render said services and shall not divide a fee with another attorney who is not a partner in or associate of his or her law firm unless:

1. The client consents to associating the other attorney after full disclosure that the fee will be divided; and,

2. The fee division is made in direct proportion to the services and responsibility performed and assumed by each attorney; and,

3. The total fee of the attorneys shall not exceed a reasonable fee for the claim.  No party shall be required to pay for the services of an attorney who violates the provisions of O.C.G.A. § 34-9-108(c).

(5)  Upon assessing attorney's fees, costs may be assessed against the offending party which are payable to the Board in an amount not less than $250.00.  The Administrative Law Judge may assess higher costs based on the length of the hearing, time traveled, and time lost from other duties.  In any case where a determination is made that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds, the Administrative Law Judge or the Board may, in addition to assessed attorney's fees, award to the adverse party reasonable litigation expenses, in whole or in part, against the offending party.  Reasonable litigation expenses under this subsection are limited to witness fees and mileage pursuant to O.C.G.A. § 24-10-24; reasonable expert witness fees (subject to the Fee Schedule, where applicable); reasonable deposition costs; and the cost of the hearing transcript.

(6)  When requesting payment of attorney's fees at a hearing pursuant to O.C.G.A. § 34-9-108, the party making the request shall be required to demonstrate the reasonableness of the attorney's fees requested by placing into the record expert testimony as to the value of services rendered.  Counsel may testify personally or in affidavit form at the hearing, subject to cross-examination, as to expert status and the reasonable value of the services rendered in order to meet this requirement.  No attorney's fees will be awarded pursuant to O.C.G.A. § 34-9-108 absent this evidence being placed in the record.

(7)  When the parties agree to an assessment of attorney's fees the attorney who is to receive the assessed fee shall file with the Board Form WC-108a, serve a copy on all parties or their counsel, and sign the certificate of service on the form.

(8) An attorney shall not receive an attorney's fee on any medical treatment or expenses obtained for an employee, unless such fee is assessed under O.C.G.A. § 34-9-108(b)(1).

(c) Solicitation of Services. See O.C.G.A. §§ 34-9-22, 34-9-30, 34-9-31 and 34-9-32.

(d) An attorney who has made an appearance by filing Form WC-14 or by filing a fee contract and who wishes to withdraw as counsel for any party therein, shall file a Form WC-108b with the Board.

(e) An attorney of record who chooses to file a lien for services must do so by filing written notice of the contended value of such services with the Board on Form WC-108b within 20 days after (i) withdrawal from the case, or (ii) notice of termination of the contract in writing by the client. The attorney of record filing a lien shall serve a copy of Form WC-108b on all unrepresented parties and counsel. Failure to attach supporting documentation will result in the lien being denied. If the Board includes the issue of approval of the fee lien for determination at a hearing or mediation, and the attorney who filed the lien fails to appear and present evidence in support of the lien, then it shall be void. If all parties agree to resolution of a fee lien request prior to the initiation of litigation, then one of them must file with the Board Form WC-108b. Failure to perfect a lien in this manner will be considered a waiver of further attorneys' fees.

(f) No attorney shall charge to any client as an expense of litigation any portion of any referral fee or membership charged by any lawyer referral service, or nonspecific office costs.

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A claimant's attorney shall file a by filing their attorney fee contract in compliance with Board Rule 108.

• Form WC-102b/Notice of Representation.

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An attorney shall file this form in order to request approval of a fee contract, an assessed fee by consent, and for resolution of a fee lien dispute by consent, when there is no pending litigation, and shall serve a copy on all counsel and unrepresented parties.

• Form WC-108a/Attorney Fee Approval
  

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An attorney who wishes to withdraw must file this form and follow the procedure set out in Rule 108(b).  An attorney of record who chooses to file a lien for services and/or request for reimbursement of expenses after withdrawal from representation or after services are terminated, in writing, by a client, shall file this form with supporting documentation, and serve a copy on all counsel and unrepresented parties.

• Form WC-108b/Attorney Withdrawal/Attorney Fee Lien

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