                             THIRD DIVISION
                            ELLINGTON, P. J.,
                        ANDREWS and RICKMAN, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                    March 13, 2018




In the Court of Appeals of Georgia
 A17A1498. AMGUARD INSURANCE COMPANY v. KERKELA.

      RICKMAN, Judge.

      This 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.

      After 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.

      Evidence 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.1 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


      1
         Pursuant to OCGA § 34-9-108 (b) (1), “[u]pon a determination that
proceedings have been brought, prosecuted, or defended in whole or in part without
reasonable grounds, the administrative law judge or the board may assess the adverse
attorney’s fee against the offending party.”

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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.

         The 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.



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      The 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 SE2d 581)

(2016); YKK (USA) v. Patterson, 287 Ga. App. 537 (652 SE2d 187) (2007); see also

Hallisey v. Fort Howard Paper, Co., 268 Ga. 57, 58-59 (1) (484 SE2d 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 SE2d 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 SE2d 225) (2003); Seabolt v. Beaulieu of America, 255 Ga. App. 750,

752 (566 SE2d 444) (2002).

      Here, 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



                                          4
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.

      We take 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 SE2d 416) (2012) (vacating judgment and

remanding case for court to reconsider its decision in light of the applicable legal

standard).

      Judgment vacated and case remanded. Ellington, P. J., and Andrews, J.,

concur in judgment only.*

      * THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF

APPEALS RULE 33.2(a).



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