GA Court Rules Employers Liable for Penalties on Late Payments of Liability Settlements Even Without Notification from GA BWC

Brewer v. Wellstar Health System (Ga. App. Feb. 21, 2012) involved a case where the Employee (“Brewster”) and the Employer (“Wellstar”) entered into a liability settlement stipulation of the case which was approved by the State Board.  Once Wellstar discovered the settlement had been approved, the full settlement amount was immediately paid to Brewster.

Brewster filed a claim seeking a 20% penalty based on late payment of the settlement proceeds pursuant to OCGA 34-9-15(a) and 34-9-221(f).  The facts were essentially not in dispute and were established to be that on July 7, 2009, the board approved the stipulated settlement agreement; entered an award conforming to the terms of the agreement; and used its automated e-mail system to send notice of the approval and award to all the parties. The board was aware prior to July 7, 2009, that some parties were not receiving notice of approval of agreements sent by its automated e-mail system. In this case, the automated e-mail notice was not received by Wellstar (the employer/self insurer), or by PMA Management Corporation (Wellstar's servicing agent), or by Wellstar's counsel. There was no discussion between the board or any of the parties regarding board approval of the agreement until August 4, 2009, at which time counsel for Brewer requested that the 20% late payment penalty be imposed on Wellstar. After Wellstar received notification on August 4, 2009, that the board had approved the agreement and issued an award, Wellstar sent settlement checks paying the benefits due under the agreement and award, and payment was received by Brewer within one week of August 4, 2009.

The ALJ assessed the 20% penalty, but the State Appellate Division reversed the award.  The Superior Court upheld the Appellate Division's decision, and that ruling was appealed to the Court of Appeals. The Appeals Court ruled the relevant statutory provisions governing liability stipulations were mandatory and therefore Brewer was entitled to have the 20% penalty assessed against Wellstar.  The fact Wellstar had no notice was not a defense and there was no provision in the law that made an employer's liability for the 20% penalty contingent upon receiving notice of approval of the settlement by the State Board. The court ruled that had the settlement been based on a no-liability stipulation, the statute did grant  discretion to excuse the payment of the penalty in appropriate circumstances.

About The Author:

Rayford H. Taylor is an “AV” rated lawyer by Martindale-Hubbell.  He is a member of The Florida Bar and the State Bar of Georgia, and practices in the areas of administrative and governmental law, appellate practice, legislative consultation, and workers' compensation.He has practiced law in Georgia since 2002 and in Florida  since 1974. Prior to entering the private practice of law, he was affiliated with The Florida Bar for more than 12 years where he served as its general counsel and legislative counsel.

Mr. Taylor is with the Law Firm of Casey Gilson, P.C., and is a member of the National Workers' Compensation Defense Network.

His full bio is available here.

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