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Ayers v. Rembert12/30/1999
§ 34-9-221 (e) an increased amount is therefore due the claimant. This issue needs no "resolution." Id. at 118.
The reasoning of Hamby is likewise applicable to subsection (f). Penalties accrue automatically by operation of the statute upon failure of the employer to pay in a timely fashion.
Advanced Materials argues that penalties must be authorized by an award of the Board in order be included in a judgment of the superior court rendered under OCGA § 34-9-106. However, the fallacy of the argument is apparent inasmuch as the accrual of late penalties is dependant upon actions which occur following the initial award of the Board.
Advanced Materials relies heavily on Kingery Block & Concrete Co. v. Luttrell, 174 Ga. App. 481 (330 SE2d 181) (1985). In Luttrell, this court refused to affirm the judgment of a superior court rendered pursuant to OCGA § 34-9-106. However, the judgment was not merely an enforcement of an underlying Board award. Id. at 483. The superior court had directed the employer to make payment for temporary partial disability benefits, but temporary partial disability benefits were not included in the underlying Board award. This court properly refused to affirm penalties associated with the non-payment of benefits which the superior court had no authority to include in its judgment. The penalties in the instant case arose from the failure of the employer to make timely payment following the Board award.
Even if Advanced Materials had a "day in court" before the Board, the employer would have no legitimate issues to raise before the Board with respect to the late payment penalty other than its mathematical calculation or actual payment. Although the Board has the power to excuse a penalty imposed on an employer pursuant to OCGA § 34-9-221 (e), there is no corresponding language in OCGA § 34-9-221 (f), which is applicable here, allowing the Board to grant such relief to the employer.
There is no independent cause of action available to an employee for an employer's deliberate failure to make workers' compensation payments. Bright v. Nimmo, 253 Ga. 378, 381 (320 SE2d 365) (1984). Once a late payment penalty has accrued, there is no particularly compelling reason for an employer to make the payment, and if employees must enforce collection of late payment penalties in proceedings separate from the judgment for the overdue benefits, employers will most likely make them do so. This result is not consistent with the purpose of the Workers' Compensation Act. "The Workers' Compensation Act was designed to provide immediate financial assistance to injured employees and to furnish a speedy, inexpensive and final settlement of their claims. [Cits.]" Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648, 649 (1) (324 SE2d 194) (1984).
The superior court calculated the penalty of 20 percent of Rembert's accrued income benefits in a manner consistent with the underlying award of the Board and in conformity with the Code. Therefore, we affirm the judgment of the superior court.
Judgment affirmed. Blackburn, P.J. and Barnes, J., concur.
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