McCoy v. J. D. Jewell, Inc. , 123 Ga. App. 175 ( 1971 )

Hall, Presiding Judge.

Claimant appeals from the judgment of the superior court affirming an award of the State Board of Workmen’s Compensation denying her motion for assessment of costs and attorney’s fees against the employer for defending the claim without reasonable grounds.

Claimant was injured in June 1966 and began receiving benefits. Several months later, the employer terminated payments and sought a change of condition hearing. The board ruled in claimant’s favor and the employer carried an appeal up through this court, which affirmed the board and the superior court in June, of 1969. The board then directed the employer to begin paying claimant weekly benefits again and to pay the accrued benefits. The employer paid weekly benefits until early November. In the meantime, it set up two appointments and requested claimant to appear for a medical examination. She was unable to keep either appointment, the latter one because she was in the hospital. However, when she did not contact the employer after her release, and after a conversation with her doctor (who stated that her present condition was not related to the accidental injury), the employer stopped sending the weekly checks. It subsequently filed a motion for a change of condition hearing, alleging claimant had fully recovered. When this came on for hearing in January of 1970, claimant filed her motion for assessment of costs and attorney’s fees although the employer had notified her lawyer the previous week that it was willing to withdraw the request for a hearing pending the outcome of a medical examination.

The question of whether an employer has defended a claim without reasonable grounds and is therefore liable for reasonable attorney’s fees and costs of litigation is "an issue of fact for determination by the State Board of Workmen’s Compensation.” Meeks v. Travelers Ins. Co., 119 Ga. App. 569 (168 SE2d 212); Wilson v. Maryland Cas. Co., 71 Ga. App. 184, 191 (30 SE2d 420). In our opinion, it cannot be said that the actions of the employer here were “so palpably without merit as to demand a finding” that its motion for a change of condition hearing "was frivolous and unfounded.” New Amsterdam Cas. Co. v. Thompson, 100 Ga. App. 677, 686 (112 SE2d 273); Employers Ins. Co. of Alabama v. Wright, 114 Ga. App. 10 (2) (150 SE2d 254); LaFavor v. Aetna Cas. &c. Co., 117 Ga. App. 873 (1) (162 SE2d 311).

Argued October 8, 1970 Decided January 6, 1971. Smith, Cohen, Ringel, Kohler, Martin & Lowe, Ralph H. Hicks, Saul Blau, for appellant. Robinson, Buice, Harben & Strickland, Sam S. Harben, Jr., for appellee.

Judgment affirmed.

Bell, C. J., Jordan, P. J., Eberhardt, Deen and Quillian, JJ., concur. Pannell, Whitman and Evans, JJ., dissent.