Employer's Insurance of Wausau v. Brown

250 S.E.2d 575, 147 Ga. App. 866, 1978 Ga. App. LEXIS 2981

Opinions

Quillian, Presiding Judge.

This is an appeal from a judgment of the superior court which affirmed an award of the State Board of Workers’ Compensation and assessed attorney fees against the appellant under Code Ann. § 114-712 (Code § 114-712, as amended through Ga. L. 1943, pp. 167-169). Held:

Argued September 5, 1978 Decided November 2, 1978. Swift, Currie, McGhee & Hiers, Clifford E. Hardwick, IV, James T. McDonald, Jr., for appellants. Lissner & Killian, Robert P. Killian, for appellees.

1. Considering the entire record of this case there was sufficient evidence upon which the board could base its holding that the claimant was engaged in concurrent similar employment for two separate employers. Therefore, his average weekly wage would be determined by the total earned from both employers. St. Paul-Mercury Indem. Co. v. Idov, 88 Ga. App. 697 (77 SE2d 327).

2. The evidence in this case presented a close question to be determined and it cannot be said that the defense was without reasonable grounds. Therefore, the assessment of attorney fees was error.

Judgment affirmed in part; reversed in part.

Bell, C. J., Deen, P. J., Webb, Smith, Shulman, Banke, and Birdsong, JJ., concur. McMurray, J., concurs in part and dissents in part.