ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Court granted the discretionary appeal application of Amguard
Insurance Company to appeal the superior court's judgment
reversing and remanding an award of the Appellate Division of
the State Board of Workers' Compensation ("the
Board") to the extent that the award failed to include
continuing assessed attorney fees. For the following reasons,
we vacate the trial court's judgment and remand the case.
Matthew Kerkela, a restaurant manager, submitted a claim that
he was injured on the job, one week before a scheduled
hearing before an administrative law judge (ALJ), Amguard,
the employer's workers' compensation insurance
carrier, accepted Kerkela's claim as compensable. Amguard
authorized Kerkela's continued medical treatment and
payment of past medical bills; paid Kerkela a lump sum of
past due temporary total disability ("TTD") income
benefits, from the date he had stopped working to the date
the claim was accepted; paid a 15 percent late-payment
penalty of the lump sum; and agreed to pay attorney fees
equal to 25 percent of the income benefits already paid. A
hearing before the ALJ was later held on the issue of whether
Kerkela was entitled to additional assessed attorney fees
equal to 25 percent of future TTD income benefits.
was presented on the issue, and the ALJ denied Kerkela's
request for continued assessed attorney fees. The ALJ
concluded that Amguard's payment of 25 percent of back
income benefits and the late-payment penalty as attorney fees
was "more than sufficient." The ALJ also concluded
that Amguard's defense of Kerkela's claim had been
reasonable, finding that Amguard conducted discovery
expeditiously, made its decision to accept the claim in a
brief period of time, and paid a lump sum amount of attorney
fees as a good-faith attempt to compromise the demand for
attorney fees. The ALJ explained that during discovery, a
second adjuster who took over the claim learned detailed
facts about the mechanism and place of injury, and additional
information about Kerkela's medical status and its
relationship to his injury. The ALJ found that Amguard
accepted the claim as compensable shortly after Kerkela had
been deposed and received an independent medical evaluation.
Board adopted the ALJ's decision. The Board accepted the
ALJ's findings of fact, stating that they were supported
by a preponderance of competent and credible evidence, and
that the ALJ was in the best position to determine the
credibility and weight of the evidence. The superior court
determined that the Board had misinterpreted evidence when it
concluded that Amguard had acted reasonably in its defense of
Kerkela's claim and listed numerous instances of
Amguard's failure to comply with its statutory
obligations. The court further determined that the "only
evidence at trial was that 25%" of back and future
benefits was a reasonable fee; and the court reversed the
Board's decision and remanded the case to the Board for
actions consistent with its order. In reaching its decision,
the court applied a de novo standard of review, finding that
such standard was appropriate given that "it is clear
that evidence has been misconstrued and
misinterpreted[.]" Amguard appeals, contending, inter
alia, that the trial court applied an incorrect standard of
review. We agree.
superior court may not disturb the factual findings of the
Board if there is any evidence to support them, as the
superior court does not have the power to find facts. See
J & R Schugel Trucking v. Logan, 336 Ga.App.
899, 901 (785 S.E.2d 581) (2016); YKK (USA) v.
Patterson, 287 Ga.App. 537 (652 S.E.2d 187) (2007); see
also Hallisey v. Fort Howard Paper, Co., 268 Ga. 57,
58-59 (1) (484 S.E.2d 653) (1997). However, "[e]rroneous
applications of law to undisputed facts, as well as decisions
based on erroneous theories of law . . . are subject to the
de novo standard of review in the superior court."
(Citation and punctuation omitted.) Heritage Healthcare
v. Ayers, 323 Ga.App. 172, 173 (746 S.E.2d 744) (2013).
Whether an employer has unreasonably defended against a claim
is a factual determination, subject to the any evidence
standard of review. See Printpack, Inc. v. Crocker,
260 Ga.App. 67, 72-73 (3) (b) (579 S.E.2d 225) (2003);
Seabolt v. Beaulieu of America, 255 Ga.App. 750, 752
(566 S.E.2d 444) (2002).
the superior court deemed the Board's conclusion that
Amguard's defense was reasonable as a
"misinterpretation" of the evidence. Such a
conclusion appears to be a disagreement with the Board's
factual findings and is subject to the any evidence standard
of review, which the superior court failed to apply. See
Printpack, 260 Ga.App. at 72-73 (3) (b). Therefore,
we vacate the judgment and remand the case for application of
the correct standard of review.
this time to mention to trial courts and litigants that it
might seem as though we are putting form over substance when
we remand cases such as this for the trial court to apply the
proper standard, rather than just reviewing the evidence
ourselves under the correct standard. However, the
application of the correct standard underpins our system of
appellate review and ensures that the fact finder - be that a
trial court, administrative tribunal, etc. - is given the
appropriate amount of deference as the entity that is tasked
with fact finding. Therefore, we find it appropriate and
important to insist that it be applied in the first instance.
See generally Burke County v. Askin, 291 Ga. 697,
701 (2) (732 S.E.2d 416) (2012) (vacating judgment and
remanding case for court to reconsider its decision in light
of the applicable legal standard).
vacated and case remanded.
Ellington, P. J., and Andrews, J., concur in judgment
OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF APPEALS RULE