THIRD DIVISION

BARNES, P. J.,

BOGGS and BRANCH, 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 30, 2015

In the Court of Appeals of Georgia

A14A1603. MONK v. PARKER et al.

BARNES, Presiding Judge.

We granted this discretionary appeal to the former counsel for a workers

compensation claimant to consider whether the superior court properly affirmed the

decision of the Workers Compensation Appellate Division granting the current

counsel’s motion to dismiss the former counsel’s attorney fee lien. Because the

superior court did not err in affirming the Appellate Division, we in turn affirm the

superior court.

We note first that the record on appeal as it pertains to the issue before us is

incomplete.1 The appellate record contains the superior court record, which in turn

contains documents filed in the superior court and the record transmitted to the

1The record does include more than 500 pages of exhibits related to the

claimant’s 2008 claim for designation of his injury as catastrophic and his 2010

request for coverage of dental expenses, in addition to more than 300 pages of

transcripts from two hearings, none of which is related to the issue on appeal. 
superior court from the Workers Compensation Board. While the Board record

contains numerous documents, including 20 Notices of Hearing issued by the Board

after the claimant’s former counsel withdrew from the case, it includes only some of

the pleadings filed by the parties with the Board. For example, the record includes

none of the parties’Requestsfor Hearing (Forms WC-14), which would indicate who

asked for the hearings and for what purpose, information that is not included in the

Board’s hearing notices. Additionally, the record does not include the former

counsel’s attorney fee lien, the current counsel’s motion to dismiss the lien, the

former counsel’s response to the motion to dismiss, or any exhibits that might have

been attached to any of those documents. While the former counsel cites to the

exhibits he attached to his application for discretionary appeal, those documents are

not part of the official record transmitted to this Court from the clerk of the superior

court. 

Our rules specifically preclude consideration of “[d]ocuments attached to an

appellate brief, which have not been certified by the clerk of the trial court as a part

of the appellate record and forwarded to this Court.” Court of Appeals Rule 24 (g);

see Williams v. Fannie Mae, 299 Ga. App. 574, 575 (682 SE2d 630) (2009). No

different standard applies to exhibits attached to an application for review.

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“Allegations of fact appearing only in appellate briefs and unsupported by evidence

in the record will not be considered on appeal.” Williams, 299 Ga. App. at 575.

Further, “[i]t is the appellant’s responsibility to ensure that the appellate record

contains the information necessary to decide the issue. Otherwise, he may not meet

his burden of showing error fromthe record.” (Citation and punctuation omitted.) Nye

v. State, 279 Ga. App. 347, 348 (1) (631 SE2d 386) (2006).

Thus, to the extent that the former counsel asks us to review the specific

language of a Stipulation and Agreement between the claimant and the employer or

the Board’s approval of that Agreement to determine whether either document

established his right to fees or expenses regardless of his fee lien, we cannot do so.

Based on the limited record before us, however, we can determine that the superior

court did not err in affirming the decision of the Appellate Division, which held that

the former counsel failed to perfect his lien as required by Board rules.

The evidence establishes without dispute that in November 2004, Tom Monk

(“Former Counsel’) began representing a workers compensation claimant whose

injury was eventually categorized in 2009 as catastrophic. The claimant terminated

Former Counsel’s representation in February 2012, and Former Counsel filed an

“Attorney Withdrawal/Lien,” Form WC-108b, via the Board’s electronic filing

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system, but did not serve copies of the form on the other lawyers. As noted earlier,

this document is not in the record. The claimant hired Linda Parker and Larry Hanna

(“CurrentCounsel”), who negotiated a Stipulation and Agreement(“the Agreement”)

that was approved by the Board in August 2012. Neither the Stipulation and

Agreement nor the Board order affirming it are included in the record, but the ALJ

subsequently described the Agreement as “resolving indemnity issues but leaving

medical open.” The Board order also directed Current Counsel to hold in escrow

$77,385.74 in attorney fees and expenses pending “resolution of all attorney lien

disputes.” 

The Board issued a notice of mediation in January 2013, apparently related to

the attorney fee dispute as it notes that “[f]ailure of former counsel to appear and

present argument and evidence in support of any fee lien will result in the dismissal

of the lien.” The date for the mediation wasresetseveral times; the reason it wasreset

is not apparent from the notices in the record. The next record item is an ALJ order

issued in June 2013, which states that Current Counsel had moved for an order

dismissing Former Counsel’s lien for failing to serve a copy on all counsel, which

was required by Board Rule 108 (e). Current Counsel had also sought permission to

disburse the funds they held in escrow. 

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The ALJfound that Former Counsel had committed a technical violation of the

rules in that he “[did] not deny that he failed to properly serve a copy of the Form

108b on all represented parties [sic], as is required by the Rule,” but held that the

unserved parties were not harmed because they had received actual notice of the filing

through the Board’s electronic filing system.

2 The ALJ also found that Current

Counsel had demonstrated “a certain lack of diligence” in failing to move for the

lien’s dismissal until more than a year after it was filed, and set the matter for a

hearing “as to the issue of the satisfaction of [Former Counsel’s] attorney fee lien.”

The ALJ granted Current Counsel’s request for a certificate of immediate appeal,

which the Appellate Division granted, and Current Counsel filed a notice of appeal. 

After being briefed and hearing oral argument, the Appellate Division reversed

the ALJ’s decision to deny Current Counsel’s motion to dismiss Former Counsel’s

attorney fee lien.

3 After observing that the legislature had granted the Board the

2Board Rule 108 (e) requires service on “all unrepresented parties and

counsel,” not on “represented parties.”

3The Division affirmed that portion of the ALJ’s order denying Current

Counsel’srequest to ignore Former Counsel’s opposition to the motion to dismissthe

lien, which Former Counsel apparently filed by paper, rather than electronically as

required by the Board Rules. The Division held that the ALJ had discretion to accept

the paper filing. That holding is not being considered in this appeal. 

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authority under OCGA § 34-9-59 to adopt rules of procedure to govern the exercise

of its functions, the Appellate Division held, 

With regard to an attorney fee lien, if an employee and/or his attorney

terminate their contract, the former attorney still is entitled to recover a

fee if he has perfected his fee lien. See OCGA § 34-9-108 and Board

Rule 108 (e). In order to perfect his attorney fee lien, the former attorney

must file written notice of the contended value of services and/or

expenses with the Board on Form WC-108b within twenty (20) days

after (i) withdrawal fromthe case, or (ii) notice of termination in writing

by the employee. Board Rule 108 (e). The former attorney “shall” serve

a copy of the WC-108b on “all unrepresented parties and counsel.” Id.

Failure to attach supporting documentation will result in the lien being

denied. Id. The rule further adds “failure to perfect a lien in this manner

will be considered a waiver of further attorney[] fees.” Id. 

Additionally, Board Rule 61 (24) provides, in part, that an attorney

withdrawing from a claim must file a WC-108b and follow the

procedures outlined in Rule 108(b). Also, an attorney who chooses to

file a lien for services and/or expenses “shall file this form [WC-108b]

with supporting documentation, and serve a copy on all counsel and

unrepresented parties.” See Board Rule 61 (24). 

The Appellate Division concluded that Former Counsel put forth no evidence

disputing Current Counsel’s “allegation as to insufficient service of the attorney fee

lien,” and held that notice from the Board’s electronic filing system was not a

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substitution for the service requirement contained in Rule 108 (e). Absent proper

service, it concluded, the lien had not been perfected. The Division thus reversed the

ALJ and granted Current Counsel’s motion to dismiss Former Counsel’s attorney fee

lien. 

Former Counsel appealed to the superior court, which affirmed the Appellate

Division “based on the ‘any evidence’ standard of review,” and this court granted

Former Counsel’s application for discretionary appeal.

1. Former Counsel contends that the superior court erred in reviewing the

ALJ’s decision under the “any evidence” standard. When reviewing a workers

compensation ruling, both the appellate court and the superior courtmust construe the

evidence in the light most favorable to the party prevailing before the Appellate

Division of the Board, and must affirm findings of fact asto disputed evidence if they

are supported by any evidence. Ray Bell Constr. Co. v. King, 281 Ga. 853, 854 (642

SE2d 841) (2007). Both levels of court apply a de novo standard of review when

considering the Appellate Division’s application of law to the facts. Trax-Fax, Inc.

v. Hobba, 277 Ga. App. 464, 465 (627 SE2d 90) (2006). 

Here, Current Counsel argues that the record does not establish that they

received a computer-generated notice when Former Counsel filed his fee lien, and

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disputes that the Stipulation and Agreement acknowledged Former Counsel’s right

to attorney fees. To the extent that the Appellate Division made disputed findings of

fact, the superior court properly reviewed them under the “any evidence” standard of

review, as does this court, but both courts review de novo the Appellate Division’s

application of the law and its rules to the facts.

2. Former counsel contends that the Appellate Division erred in its “legal

interpretation” of Board Rule 108 (e) by failing to uphold the ALJ’s determination

that Current Counsel had waived the service requirement. He further argues that,

“[b]y failing to uphold the initial finding of waiver, the State Board and the Superior

Court entertained remedies outside its collective jurisdiction.” 

OCGA § 34-9-58 grants the Board the ability to “exercise all powers and

perform all the duties relating to the enforcement of [the Workers’ Compensation

Act],” and OCGA § 34-9-59 empowers the Board to adopt rules of procedure to

govern the exercise of its functions and hearings. “It is within the purview of [the

appellate courts] to consider the validity of an agency rule by determining whether

it comports with the legislative enactment which authorizes the rule.” Mulligan v.

Selective HR Solutions, 289 Ga. 753, 756 (1) (716 SE2d 150) (2011). In reviewing

an administrative agency’s interpretation of a statute it has the duty to enforce and its

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application of the rulesit promulgated to carry out that duty, we ordinarily grant great

deference to the agency’s decision. MARTA v. Reid, 295 Ga. 863, 867, n. 6 (763 SE2d

695) (2014); Lane v. Williams Plant Srvcs., 330 Ga. App. 416, 416-417 (766 SE2d

482) (2014). 

In this case, although the superior court did not review de novo the Division’s

application of the facts to the law, we find no error in the superior court’s decision to

affirm the Appellate Division’s dismissal of Former Counsel’s attorney fee lien. The

Appellate Division did not entertain remedies outside of its jurisdiction; it simply

applied its rules to the facts before it. Board Rule 108 governs the Board’s exercise

of its authority to approve attorney fees found in OCGA § 34-9-108 (a), and Board

Rule 108 (e) addressesthe proceduresrequired to file and perfect an attorney fee lien.

The rule provides,

(e) An attorney of record who chooses to file a lien for services and/or

expenses must do so by filing written notice of the contended value of

such services and/or expenses with the Board on Form WC-108b within

20 days after (i) withdrawal from the case, or (ii) notice of termination

of the contract in writing by the client. The attorney of record filing a

lien shall serve a copy of Form WC-108b on all unrepresented parties

and counsel. Failure to attach supporting documentation will result in

the lien being denied. If the Board includes the issue of approval of the

lien for determination at a hearing or mediation, and the attorney who

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filed the lien fails to appear and present evidence in support of the lien,

then it shall be void. If all parties agree to resolution of a lien request

prior to the initiation of litigation, then one of them must file with the

Board Form WC-108b. Failure to perfect a lien in this manner will be

considered a waiver of further attorney[] fees.

(Emphasis supplied.) 

Here, Former Counsel did not serve a copy of Form WC-108b on Current

Counsel asrequired by the Board’srules, and the Appellate Division determined that

therefore his lien was not perfected. Further, the record contains no evidence that

Current Counsel even received actual notice of the filing through the Board’s

electronic filing system, asthe Appellate Division decision refers only to “an alleged

generated notice of filing.” Reviewing this decision de novo, and deferring as we

must to the Board’s promulgation and enforcement of rules pursuant to itslegislative

authority to regulate the award of attorney fees in workers’ compensation cases, we

find no error in the superior court’s decision to affirm the Appellate Division. 

3. Former Counsel argues that the decision of the superior court and the

Appellate Division unconstitutionally deprived him of his vested property right to

attorney fees previously granted to him by the Board, citing to an exhibit attached to

his application to this court for discretionary appeal. He also contends that Current

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Counsel “ratified the lien” by signing the Stipulation and Settlement subsequently

approved by the Board, and argues that although the legislature gave the Board the

power to adjudicate and award attorney fees, the Board had no equitable power to

“exact a forfeiture” of a vested right. 

This record does not establish that Former Counsel had a vested right to any

fees. As previously addressed, the record does not include the Stipulation and

Agreement or the Board’s order related to the Agreement, and Current Counsel

disputes that either document granted Former Counsel a vested right to any fees.

Instead, Current Counsel argues, the documents simply acknowledge the existence

of a fee dispute, which even the ALJ described as “an alleged lien.” The record

contains nothing to support the conclusion that the Board had already determined that

Former Counsel was entitled to fees, and therefore this enumeration is without merit. 

Judgment affirmed. Boggs and Branch, JJ., concur.

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