Appellate Division defines “litigation expenses and fees”

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In an appeal before the Workers Compensation Appellate Division, an employee argued that an ALJ erred in assessing paralegal expenses as a litigation cost.  Pursuant to O.C.G.A. § 34-9-108(b)(4), the Code limits reasonable litigation expenses to witness fees and mileage pursuant to Code Section 24-10-24; reasonable expert witness fees subject to the fee schedule; reasonable deposition transcript cost; and the cost of the hearing transcripts.  After reviewing the Code section, the Court determined that paralegal time is not a reasonable litigation expense as defined under O.C.G.A. § 34-9-108(b)(4).

In the same appeal, the employee also argued that there was no basis to award a fee for the employee’s failure to attend an independent medical examination.  The Court found that O.C.G.A. § 34-9-108 allows for the reimbursement of reasonable litigation expenses, which includes witness and expert witness fees.  Since O.C.G.A. § 34-9-102 states that a medical report by an examining physician shall be admissible as evidence, then the fee for the employee’s failure to attend the independent medical examination was proper.  The Court concluded that the fee was a reasonable litigation expense properly assessed against the employee since the fee was an expense incurred by the employer for the purpose of obtaining a medical opinion from an expert witness to be presented at the hearing.