…any party may apply…for another decision [regarding TTD benefits] because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits…provided…that at the time of application not more than two years have elapsed since the date the last payment of [TTD] income benefits…was actually made.
SEEMS CLEAR, WHY THE CONFUSION?
While the statute seems to be straight forward enough, actual application seems less so. In the experience of many employers and insurers, application, or more appropriately, failure to apply applicable statutes of limitations seems rooted in the mission of the State Board of Workers’ Compensation to liberally apply the Workers’ Compensation Act to accomplish the purposes of the Act. Perhaps the answer lies in the reticence of the Courts to apply such a harsh remedy to circumstances involving a potentially serious injury to a deserving party. More often, though, litigation over statutes of limitation is fought at the margins, involving the exceptions to applying the statute of limitations rather than the reasons that the statute should be followed. In short, the Workers’ Compensation Act is contrary to common law and as such must be strictly construed according to its statutory framework. The trial of the statute of limitations defense places the burden of proof on the employer as the party asserting the reason NOT to pay to establish that it is the terms of the Worker’s Compensation Act that require the Court to rule against the resumption of income benefits.
Fortunately, recent decisions from the Georgia Court of Appeals seem to suggest that the Court of Appeals will apply the statute as written with less credence given to the old excuses or dodges offered by injured workers or their counsel.
The State Board of Workers’ Compensation has historically enforced the change of condition statute only when the employer could clearly and unequivocally demonstrate full compliance with even the ministerial filings required under the Act. For example, an injured worker receives income benefits from his employer and subsequently returns to work. OCGA §34-9-221 provides that upon an actual return to work, the employer is entitled to unilaterally suspend income benefits. Board Rule 221, however, requires that the suspension be memorialized by the filing of form WC2 with the State Board of Workers’ Compensation. The putative purpose of the ministerial filings is to provide notice of the suspension of benefits. However, in the case of the employee’s ACTUAL return to work to pre-injury wages, the purpose of notice is superfluous in that the employee KNOWS that he is now earning income again and that he is no longer entitled to Temporary Total Disability benefits. However, the State Board of Workers’ Compensation previously treated the failure to file form WC2 as a bar to the application of the change of condition statute.
THE STATUTE MEANS WHAT IT SAYS
On June 27, 2008, the Georgia Court of Appeals decided the case of United Grocery Outlet et al. v. Bennett, 292 Ga. App. 363, 665 SE 2d 27 (2008). In this case, Ms. Bennett sustained an injury arising out of and occurring in the course of her employment with United Grocery, received benefits, and returned to work, at which time her income benefits were unilaterally suspended. Later, when Ms. Bennett went out of work again, she requested income benefits. The employer refused, as more that two years had elapsed since the last payment of income benefits. Citing the employer’s failure to file and serve upon her Board Form WC2 as required by OCGA §34-9-221(c), Ms. Bennett requested that the State Board order United to reinstate her income benefits. The State Board ruled in favor of United, as did the Appellate Division of the State Board. After the Superior Court reversed the decision of the State Board, the Court of Appeals accepted United’s application for discretionary review.
The Court of Appeals discussed the fact that prior iterations of the equivalent to OCGA §34-9-104 provided that the statute would begin to run on the date that the State Board was notified that final payment of a claim had been made. Later amendments started the limitation period on the “date of final payment of income benefits due…” While an improvement on the previous statute, this left open the possibility that a change of condition claim could succeed if the employee produced evidence that, for example, the employer failed to include a penalty on a late payment and that, therefore, all income benefits due had NOT in fact been paid. This version of the change of condition statute further left open the possibility of a successful change of condition claim if a permanent partial disability/impairment rating was not paid, even if that rating was not in existence at the time the suspension of benefits was accomplished. This potential for legal mischief achieved full flower in the case of Holt’s Bakery v. Hutchinson, 177 Ga. App. 154, 338 SE 2d 742 (1985). In Hutchinson Ga.
In 1990, the Georgia General Assembly further amended OCGA §34-9-104 to the effect that the period of limitation would begin to run on the day the last payment was ACTUALLY made. This would seem to provide a clear indication to the Courts that the statute meant precisely what the plain language provides. The very fact that the Court was called upon in Bennett to make this ruling, and that at least one Court had agreed with Ms. Bennett’s position and ignored the very clear and unequivocal language of OCGA §34-9-104 (b), is clear enough indication that more was needed. As a result, the Bennett Court felt compelled to remind the lower Court that “When a statute is plain and susceptible of but one natural and reasonable construction, the Court has no authority to place a different construction upon it but must construe it according to its terms,” citing Mechanical Maintenance v. Yarborough, 264 Ga. Bennett Court
Using very clear language, the General Assembly expressed its intent to bar change in condition claims brought over two years after the last payment of TTD income benefits. Nothing in the statutory language tolls this period pending compliance with rules regarding the filing and service of board forms. Although an employer who violates these rules may be -and in this case was- subject to civil penalties, we find no grounds for delaying or extending the statute of limitation based on such non-compliance.
Ms. Bennett claimed due process violations when the W2 form was not sent to her to provide “notice.” However, the Court made clear that ACTUAL notice, ACTUAL KNOWLEDGE, was available to Ms. Bennett, as she knew that benefits were not continuing. The standard is now set in bold and unequivocal terms in statutory and case law terms. Future litigants will thus need to assure that the Courts do not unfairly allow exceptions to this rule to overtake and obviate the rule.
THE MEANING OF CHANGE OF CONDITION
By January 2009, the Court of Appeals had its first opportunity to consider one of those exceptions. In Williams v. Con-Agra Poultry, 295 Ga. App. 744, 673 SE 2d 105 (2009), the Court was asked to decide that Deborah Williams’ request to have her claim treated as catastrophic, and thus to have her income benefits reinstated, was not barred by the change of condition statute of limitations of OCGA §34-9-104(b). Ms. Williams had received the statutory maximum period of TTD benefits (400 weeks for a non-catastrophic claim) and her benefits were suspended in April 2001. In March of 2002, Ms. Williams filed her first request for hearing to have her claim deemed catastrophic. That request was denied. She filed her second request in April of 2003, which was likewise denied. Having not appealed either of the first two denials of her request for a catastrophic designation, she filed a THIRD request in September 2003. Apparently, Ms. Williams learned something from the first two efforts and this time included evidence that was convincing to the State Board’s rehabilitation division, who finally accepted her claim as catastrophic. However, by the time of this third request, over two years had elapsed since the income benefits were suspended. The employer requested a hearing on the Rehabilitation Division’s designation of the claim as catastrophic in order to dispute the entitlement to a resumption of the income benefits. However, the employer agreed to a consent order accepting the claim as a catastrophic claim for purposes of medical benefits. Ms. Williams argued that she had not undergone a change of her condition. Her position was that her condition had never changed and was instead as bad as it was in 2001 when she reached the maximum period of entitlement. Ms. Williams should perhaps be given credit for creativity in attempting to use the literal terms of vocabulary as opposed to the “term of art” treatment required in application of the terms as employed in OCGA §34-9-104. However, the Court of Appeals would have none of it. The Court held that the third request for catastrophic designation was a request for change in status, i.e. a change back to an income benefit recipient. The Court found that this was “plainly subject to OCGA §34-9-104(b)…including the two year statute of limitations set out therein.” Id at 746.
HEARING REQUEST REQUIRED TO TOLL THE STATUTE
The next attempt to dodge the application of the statute of limitations, to craft an exception if you will, came two months later in Tara Food et al. v. Johnson, 297 Ga. App 16, 676 SE 2d 418 (2009). Beverly Johnson’s counsel attempted to take advantage of a common ploy by counsel to hedge his bets and toll the statute by the filing of Board form WC14, but to do so as a notice of claim and not as a request for hearing. When her income benefits were suspended on August 28, 2001, Ms. Johnson did nothing. In November 2002, her counsel filed a notice of claim form but did not request a hearing. She did, however, note that she was seeking a resumption of her income benefits back to the date of suspension. However, as no hearing was requested, no action was taken. In August 2005, Ms. Johnson’s counsel filed a WC14 and DID request a hearing, but at that time sought only the payment of medical expenses. The issues on this hearing request were resolved by consent order and the hearing request was dismissed. Believing that she had preserved the right to request income benefits (by virtue of the November 2002 notice of claim), Ms. Johnson failed to ask for income benefits until September 15, 2006. This time, Ms. Johnson did specifically ask for treatment of her claim as catastrophic and for a resumption of her income benefits. The State Board denied that request, but their decision was reversed by the Superior Court which held that the November 2002 notice of claim was sufficient to toll the statute of limitations. The Court of Appeals took aim at this finding and took great pains to distinguish OCGA §34-9-104 (the change of condition statute of limitations) from OCGA §34-9-82 (the ALL issues statute of limitations). While the filing of a notice of claim is sufficient to toll the ALL issues statute found at OCGA §34-9-82, the same cannot be said for its change of condition cousin. The purpose of the two different limitations explains the different treatment. The ALL issues statute places the employer on notice of a potential claim such that an investigation can be conducted at a time when memories, documents, and witnesses are still fresh and available. The same purpose is not served in the change of condition situation, as the investigation was already conducted at the time the claim was determined to be compensable in the first place. Allowing the injured worker to escape the application of the change of condition statute of limitations simply by filing a notice of claim would subvert the entire statute, as any responsible attorney from that point forward would always file a WC14 as a notice of claim and list the potential issue that at some point in the future the claimant MIGHT become entitled to TTD. With that sort of concession, no employer or insurer could ever have a reasonable expectation that a dormant claim is forever closed. The Court explained that the change of condition statue of limitations speaks not in terms of the filing of a claim but instead “any party may apply for another…decision [regarding TTD benefits] because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits…provided…that at the time of application not more than two years have elapsed since the date the last payment of [TTD] income benefits…was actually made.” [Emphasis in the Court’s original opinion].
Note the use of the language and the emphasis on the terms “at the time of application.” There is arguably a strong case to be made that “at the time of application” refers to the present application and that any previous hearing requests filed but not prosecuted through to an evidentiary hearing would be insufficient to toll the statute of limitations and that the Court will hold the litigants to the plain language of the statute that the application must be plainly within two years from the last payment of income benefits.
ONCE TOLLED FOREVER TOLLED?
That seems to be the direction that the Court was taking when, in July 2009, the Court rendered its decision in The Kroger Company et al. v. Wilson, (A09A1226, July 8, 2009). Mr. Wilson received income benefits after a compensable injury which resulted in back surgery. He returned to work and received Temporary Partial (wage loss benefits) until he reached the maximum period of eligibility for those benefits (350 weeks as calculated from the date of the injury). Thereafter, he continued working without any further income benefits. In August 2003, Mr. Wilson filed a request for hearing and specifically listed TTD and TPD benefits on the hearing request. He did not ask for a catastrophic designation at that time. Later he withdrew that request for a hearing and no further action was taken. When, in April 2006, he asked the Rehabilitation Division for a catastrophic designation, the question was submitted to an Administrative Law Judge, who determined that the request for lifetime income benefits was barred by the statute of limitations in OCGA §34-9-104(b). Citing its decision from March 2009 in Williams v. Con-Agra Poultry, the Court pointed out that the only way that Mr. Wilson could be granted additional income benefits was to be granted catastrophic status, which he had failed to request within two years from the last payment of income benefits. Wilson
Were we to hold that a statute of limitation for requesting a catastrophic designation is tolled when a working claimant applies for a hearing regarding a temporary disability claim, and then withdraws his hearing request, we would effectively invalidate the statue of limitations on catastrophic injury designation requests.
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