(Ga. L. 1920, p. 167, § 45; Code 1933, § 114-709; Ga. L. 1937, p. 528; Ga. L. 1968, p. 3, § 5; Ga. L. 1972, p. 149, § 1; Ga. L. 1973, p. 232, § 9; Ga. L. 1978, p. 2220, § 13; Ga. L. 1990, p. 1409, § 3; Ga. L. 1992, p. 1942, § 11; Ga. L. 1998, p. 1508, § 3; Ga. L. 2006, p. 676, § 2/HB 1240.)
Law reviews.- For article discussing injury as a result of aggravation, see 14 Ga. St. B. J. 135 (1978). For article surveying recent legislative and judicial developments regarding Georgia's insurance laws, see 31 Mercer L. Rev. 117 (1979). For article surveying Georgia cases in the area of workers' compensation from June 1979 through May 1980, see 32 Mercer L. Rev. 261 (1980). For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For annual survey of workers' compensation, see 38 Mercer L. Rev. 431 (1986). For article, "Change in Condition and New Accident: The Difference Between the Two, Elements of Each, and Burdens of Proof," see 46 Mercer L. Rev. 35 (1994). For review of 1998 legislation relating to labor and industrial relations, see 15 Ga. St. U.L. Rev. 185 (1998). For annual survey article discussing workers' compensation law, see 52 Mercer L. Rev. 505 (2000). For article, "Workers' Compensation," see 53 Mercer L. Rev. 521 (2001). For survey article on workers' compensation law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of law of workers' compensation, see 56 Mercer L. Rev. 479 (2004). For annual survey of workers' compensation law, see 57 Mercer L. Rev. 419 (2005). For annual survey of workers' compensation law, see 58 Mercer L. Rev. 453 (2006). For annual survey on workers' compensation, see 61 Mercer L. Rev. 399 (2009). For annual survey of law on workers' compensation, see 62 Mercer L. Rev. 383 (2010). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 66 Mercer L. Rev. 231 (2014). For annual survey on workers' compensation law, see 66 Mercer L. Rev. 247 (2014). For annual survey of workers' compensation, see 67 Mercer L. Rev. 287 (2015). For annual survey of workers' compensation, see 68 Mercer L. Rev. 333 (2016). For annual survey on decisions impacting workers' compensation, see 69 Mercer L. Rev. 357 (2017). For note on 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 285 (1992).
JUDICIAL DECISIONSANALYSIS
This section was the only authority for review of judgment of the board. Travelers Ins. Co. v. Haney, 92 Ga. App. 319, 88 S.E.2d 492 (1955).
Award is res judicata until changed according to law.
- Award of compensation is res judicata until it is changed in the manner prescribed by law. Yates v. Hall, 189 Ga. App. 885, 377 S.E.2d 887, cert. denied, 189 Ga. App. 914, 377 S.E.2d 887 (1989).
Board may review award on hearing held pursuant to application filed under this section, seeking a new award on account of further change in condition. Roper Corp. v. Reynolds, 142 Ga. App. 402, 236 S.E.2d 103 (1977).
Review of award.
- Under this section, an award may be reviewed upon the application of any party at interest on the ground of a change in condition, and compensation payments increased or decreased accordingly. Brazier v. U.S. Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).
Authority of board to determine change in condition on own motion.
- On its own motion, the board has full authority before judicial determination and within the time specified to determine existence of a change in condition and make an award based on its findings. Maryland Cas. Co. v. Gattis, 119 Ga. App. 16, 165 S.E.2d 875 (1969).
Board may review an award on the ground of a change in condition on its own motion. Fulton Cotton Mills v. Lashley, 123 Ga. App. 528, 182 S.E.2d 180 (1971).
Duty of board to examine into application for review.
- Application for review upon ground of change in condition presents a quasi-new case, although it is not a new proceeding, and it is the duty of the commission (now board) to examine into it, if the matter sought to be reviewed has not been judicially determined or becomes res adjudicata, and if the commission (now board) still has jurisdiction of the subject matter. Ingram v. Liberty Mut. Ins. Co., 63 Ga. App. 493, 11 S.E.2d 499 (1940).
Number of applications under section not limited.
- There is no limit on the number of applications which either employer or employee may make on the ground of a change in condition. Ware v. Swift & Co., 59 Ga. App. 836, 2 S.E.2d 128 (1939); Travelers Ins. Co. v. Haney, 92 Ga. App. 319, 88 S.E.2d 492 (1955).
Application must be brought while board has jurisdiction.
- There is no provision in the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) requiring that an application for a review under this section must be made within any certain period, but an employee did not have unlimited time within which to apply for review, as such proceeding must be brought while the department (board) had jurisdiction of the subject matter. London Guarantee & Accident Co. v. Boynton, 54 Ga. App. 419, 188 S.E. 265 (1936).
Running of statute of limitations.
- Date of last payment of benefits by the employer would start the running of the two-year statute of limitation only if, in fact, those are the only benefits due to the claimant. If, however, the claimant was potentially due other benefits which were not paid, then the statute of limitation does not commence simply because the employer decides to suspend payments. Bateman v. Merico, Inc., 190 Ga. App. 710, 379 S.E.2d 526, cert. denied, 190 Ga. App. 897, 379 S.E.2d 526 (1989).
Administrative law judge correctly ruled that the statute of limitations did not begin to run until the last day on which income benefits were actually paid to the employee, including the penalty payments as income payments for such purposes. Tube v. Hurston, 261 Ga. App. 525, 583 S.E.2d 198 (2003).
Two year statute of limitation contained in O.C.G.A. § 34-9-104 does not begin running until all income benefits, including permanent partial disability (PPD) payments, due under the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., have been paid. Therefore, because an employee had never been paid the employee's PPD benefits, they were potentially due and the statute of limitation did not bar the employee's claim. Wet Walls, Inc. v. Ledezma, 266 Ga. App. 685, 598 S.E.2d 60 (2004).
One-year limitation not applicable.
- Limitation provided in former Code 1933, § 114-305 (see now O.C.G.A. § 34-9-82), barring right to compensation unless a claim was filed within one year after the accident, did not apply to a claim properly and timely filed under former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104), based on a change in condition of the claimant. Campbell Coal Co. v. Render, 48 Ga. App. 547, 173 S.E. 245 (1934); Automatic Sprinkler Corp. of Am. v. Rucker, 87 Ga. App. 375, 73 S.E.2d 609 (1952); Old Colony Ins. Co. v. Bennett, 108 Ga. App. 499, 133 S.E.2d 415 (1963).
Untimely claim is barred.
- When aged and illiterate claimant was not advised of claimant's rights to obtain additional compensation, and did not make any inquiry as to claimant's rights until more than three years after claimant's injury and receipt of compensation therefor, claimant's claim was barred. Priest v. Exposition Cotton Mills, 86 Ga. App. 301, 71 S.E.2d 743 (1952).
When employee failed to apply to the board within two years for a hearing on account of a change of condition, the employee cannot later seek to avoid the effects of a contract which the employee signed agreeing that the employee had received all the compensation to which the employee was entitled under the original award and all subsequent awards. Atlanta Coca Cola Bottling Co. v. Gates, 225 Ga. 824, 171 S.E.2d 723 (1969).
WC-14 form filed in 2002 that only made a claim for a change in condition did not satisfy the requirements for a timely filing under O.C.G.A. § 34-9-104(b) of an application for catastrophic injury designation, and a WC-14 form filed in 2006 that properly sought the designation was untimely as the worker's last income benefit was received in 2001. Tara Foods v. Johnson, 297 Ga. App. 16, 676 S.E.2d 418 (2009), cert. denied, No. S09C1243, 2009 Ga. LEXIS 344 (Ga. 2009).
Driver's claim for catastrophic designation of an injury was time barred under O.C.G.A. § 34-9-104(b) because, inasmuch as the driver sought additional income benefits, the driver had two years from the date of the last income benefits payment to file the WC-R1CATEE claim form for a catastrophic injury designation, but failed to do so; the driver's earlier filing of a WC-14 form did not toll the statute of limitation because the only benefits sought in the driver's WC-14 form were temporary disability benefits. There was no request for a catastrophic injury designation in the WC-14 form. Kroger Co. v. Wilson, 301 Ga. App. 345, 687 S.E.2d 586 (2009), cert. denied, No. S10C0606, 2010 Ga. LEXIS 341 (Ga. 2010).
O.C.G.A. § 34-9-104(b) is clear and unambiguous, and its plain and ordinary meaning is that the statute bars claims for permanent partial disability benefits made more than four years from the last payment of either temporary total disability benefits or temporary partial disability benefits. Bell v. Gilder Timber Co., 337 Ga. App. 47, 785 S.E.2d 682 (2016).
State Board of Workers' Compensation did not err by failing to toll, or carve out an exception to, the four-year statute of limitation found in O.C.G.A. § 34-9-104(b), nor did the trial court err by affirming the decision of the State Board of Workers' Compensation; thus, the claimant's petition for review was properly denied as the claimant applied for temporary benefits outside the four year limitations period. Bell v. Gilder Timber Co., 337 Ga. App. 47, 785 S.E.2d 682 (2016).
Voluntarily paid medical-only benefits.
- If a worker wishes to preserve the worker's lifetime right to treatment for a work injury for which no treatment is needed within a one-year period, a claim must be filed; the legislature did not intend for the voluntary payment of medical-only benefits to have forever negated the need for filing a claim. Wier v. Skyline Messenger Serv., 203 Ga. App. 673, 417 S.E.2d 693, cert. denied, 203 Ga. App. 908, 417 S.E.2d 693 (1992).
Relief of parties from res judicata in particular instances.
- It is not the purpose of Ga. L. 1920, p. 167, § 45 (see now O.C.G.A. § 34-9-104) to abolish entirely the doctrine of res judicata; but it was intended to relieve the parties from this doctrine in the particular instances named therein. Home Accident Ins. Co. v. McNair, 173 Ga. 566, 161 S.E. 131 (1931), answer conformed to, 44 Ga. App. 659, 162 S.E. 635 (1932); Fidelity & Cas. Co. v. Leckie, 52 Ga. App. 591, 183 S.E. 642 (1935); Travelers Ins. Co. v. Haney, 92 Ga. App. 319, 88 S.E.2d 492 (1955); Chevrolet Div., GMC v. Dempsey, 212 Ga. 560, 93 S.E.2d 703 (1956).
There is no provision which automatically cancels award which the board has made to an employee who has sustained a compensable injury. Hayes v. Consolidated Freightways, 131 Ga. App. 77, 205 S.E.2d 40 (1974).
No automatic cancelation but review possible.
- Workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.) contains no provision which automatically cancels an award which the board has made to an employee for a compensable injury, but it does make ample provision for review of the award when there is a change in the condition of the employee. Guess v. Liberty Mut. Ins. Co., 219 Ga. 581, 134 S.E.2d 783 (1964); Hartford Accident & Indem. Co. v. Webb, 109 Ga. App. 667, 137 S.E.2d 362 (1964).
Cause of disability determined by first award.
- Under this section, on an application to review an award based on a change in condition of claimant, cause of claimant's condition and disability on which original award was predicated, are to be taken as adjudicated by the first award. Hartford Accident & Indem. Co. v. Camp, 69 Ga. App. 758, 26 S.E.2d 679 (1943).
Only ruling that is res judicata is that injury arose out of and in course of employment. Manufacturers Cas. Co. v. Huskins, 93 Ga. App. 10, 90 S.E.2d 604 (1955).
Contention that present disability is not result of original injury not precluded.
- Fact that compensation was paid on original injury does not preclude employer and insurer from contending that present disability, if any, did not stem from original injury. Hall v. Saint Paul-Mercury Indem. Co., 96 Ga. App. 567, 101 S.E.2d 94 (1957).
Board may make new or different award.
- When the evidence before the commission (now board) authorizes a finding that there has been a change in the condition of the claimant, a new award of compensation, based upon such changed condition, may be entered, although the original award may have been based upon a disability found by the commission (now board), at the time of making such original award, to be permanent. South v. Indemnity Ins. Co. of N. Am., 39 Ga. App. 47, 146 S.E. 45 (1928), cert. denied, 39 Ga. App. 843 (1929).
Awards of the commission (now board) are subject to review whenever there is a change in condition of the employee, and on such review the commission (now board) is authorized to make another and different award. General Accident, Fire & Life Assurance Corp. v. Beatty, 174 Ga. 314, 162 S.E. 668 (1932).
Since the board is not a court and has no jurisdiction to declare the rights of the parties as a superior court, it can merely determine the amount of compensation and the time of payment, and change the award it previously made. Pacific Employers Ins. Co. v. King, 133 Ga. App. 458, 211 S.E.2d 396 (1974), overruled on other grounds, Seaboard Fire & Marine Ins. Co. v. Smith, 146 Ga. App. 893, 247 S.E.2d 607 (1978).
Binding effect of board's award on courts.
- In a hearing before the board to determine whether there had been a change in condition of claimant, when the only evidence was opinion evidence, the Court of Appeals was powerless to reverse findings of fact of the board when there was any legal evidence in the record to support the award, in the absence of fraud. Evans v. New Amsterdam Cas. Co., 62 Ga. App. 666, 9 S.E.2d 706 (1940).
Superior court, on appeal from award of the board, is without authority to reverse and set it aside when it is supported by any competent evidence. Bituminous Cas. Corp. v. Wilbanks, 68 Ga. App. 631, 23 S.E.2d 519 (1942).
When there is evidence that diagnosis of claimant's condition has changed and also evidence to support finding that there has been no change in condition, award of compensation supported by any competent evidence is binding on the courts. Employers Mut. Liab. Ins. Co. v. Sheets, 105 Ga. App. 734, 125 S.E.2d 569 (1962).
When proper causation in a change of condition hearing is established under the "any evidence" rule by the testimony of the employee and the employee's medical witness, the appellate court will not reverse. North Ga. Technical & Vocational Sch. v. Boatwright, 144 Ga. App. 66, 240 S.E.2d 563 (1977).
Under this section, the board had jurisdiction to determine a change in condition, and such determination, resulting in termination of the right to compensation, unless appealed, was a final award which was binding and conclusive as to all questions of fact and was entitled to res judicata effect in subsequent actions in superior court to recover for overpayment of benefits. Seaboard Fire & Marine Ins. Co. v. Smith, 146 Ga. App. 893, 247 S.E.2d 607 (1978).
Distinction between finality of awards granting and denying compensation is that the case is kept pending when compensation is awarded, while a judgment denying compensation in the first instance is made a final judgment, ending the entire case for all purposes, in which case the only remedy is an appeal from the award within the time prescribed. U.S. Fid. & Guar. Co. v. Garner, 76 Ga. App. 87, 45 S.E.2d 109 (1947); Travelers Ins. Co. v. Haney, 92 Ga. App. 319, 88 S.E.2d 492 (1955).
No power to reopen case after finding of exemption from chapter.
- Neither upon its own motion nor upon application of employer and claimant has the commission (now board) the power and authority, under Ga. L. 1920, p. 167, § 45 or other provisions of the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), to pass an order reopening a case and granting another hearing for the taking of evidence, and to reconsider the case upon its merits, after the commission (now board) has entered an order finding that the employee was a farm employee and therefore exempt from coverage of that law. Gravitt v. Georgia Cas. Co., 158 Ga. 613, 123 S.E. 897 (1924).
Denial for refusal of tendered medical treatment.
- When, on a hearing before the commission (now board), compensation from the date of the injury was denied claimant for refusal to accept tendered medical services, this judgment, in the absence of any possible subsequent change in condition, amounted to an adjudication of claimant's right to compensation from the date of injury to the date of refusal of medical services. Teems v. American Mut. Liab. Ins. Co., 41 Ga. App. 100, 151 S.E. 826 (1930).
Original award conclusive until superseded.
- Award of board was res judicata until a new agreement was entered into between the parties or application was made for a hearing to show a "change in condition" or the employer showed a change in condition on a hearing held under this section. Complete Auto Transit, Inc. v. Davis, 101 Ga. App. 849, 115 S.E.2d 482 (1960).
Award of the board providing for the payment of compensation on account of total disability was res judicata as to the existence of such disability and the compensation due thereunder until such time as it was set aside either by an approved final settlement receipt or by a subsequent award entered under this section finding a change in condition. Pacific Employers Ins. Co. v. Shoemake, 105 Ga. App. 432, 124 S.E.2d 653 (1962).
Original award is conclusive on both employer and employee as to extent of disability and continuance thereof, until superseded by a new award. Hartford Accident & Indem. Co. v. Webb, 109 Ga. App. 667, 137 S.E.2d 362 (1964).
Until it is changed or modified in the manner provided by the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), an award has the same force and effect as the decision or judgment of any other tribunal known to our system of jurisprudence. American Mut. Liab. Ins. Co. v. Chandler, 112 Ga. App. 574, 145 S.E.2d 816 (1965).
Determinations of disability and dependency conclusive to time of hearing.
- While the doctrine of res judicata does not make forever conclusive the determinations of the issues of the amount of disability and dependency, such determinations are conclusive as to those issues up to and at the time of the hearing, and remain conclusive unless a change in condition or dependency occurring after such hearing is shown. Fishten v. Campbell Coal Co., 95 Ga. App. 410, 98 S.E.2d 179 (1957).
Res judicata not applicable to amount of compensation.
- When original award allows compensation in some amount, doctrine of res judicata, while it applies to questions of whether there was an injury and whether that injury arose out of the course of employment, does not apply to questions of whether claimant was entitled to compensation and in what amount. Rhindress v. Atlantic Steel Co., 71 Ga. App. 898, 32 S.E.2d 554 (1944).
Application based on change arising since hearing held not barred by pendency of appeal.
- Pendency in appellate court from judgment of superior court affirming the board in denying an increase in compensation on account of an alleged change in condition since the former award does not deprive the board of jurisdiction to entertain another application for claimant for additional compensation on account of a change in condition arising since the hearing upon which the award appealed from was based. Ingram v. Liberty Mut. Ins. Co., 63 Ga. App. 493, 11 S.E.2d 499 (1940).
Degree of disability established absent showing of change in condition.
- After a question of percentage of disability has been decided it is res judicata, and the mere fact that on a change of condition hearing there was expert testimony of a lesser degree of disability that testimony would not authorize decreasing the disability award, absent specific testimony by a physician, who treated claimant throughout, that claimant's condition had changed. Security Ins. Group v. Slusher, 144 Ga. App. 2, 240 S.E.2d 272 (1977).
Physical condition of employee remains open to inquiry. Globe Indem. Co. v. Lankford, 35 Ga. App. 599, 134 S.E. 357 (1926); South v. Indemnity Ins. Co. of N. Am., 39 Ga. App. 47, 146 S.E. 45 (1928), cert. denied, 39 Ga. App. 843 (1929); Williams v. U.S. Cas. Co., 47 Ga. App. 517, 170 S.E. 894 (1933); Burkhart v. Argonaut Ins. Co., 239 Ga. 608, 238 S.E.2d 400 (1977).
If future developing facts and circumstances show a change in condition with reference to an employee by reason of this previous injury, such as would actually diminish the average weekly wages received by the employee, so that an award should be made, the law provides for such a contingency; and a ruling denying recovery would not operate as res judicata barring a proper award. American Mut. Liab. Ins. Co. v. Hampton, 33 Ga. App. 476, 127 S.E. 155 (1925).
Under this section, upon application to review a previous award upon a change in condition, only the physical condition of the employee remained open to inquiry. Ingram v. Liberty Mut. Ins. Co., 62 Ga. App. 789, 10 S.E.2d 99 (1940).
Award of compensation is final insofar as it adjudicates that claimant sustained an accidental injury arising out of and in the course of claimant's employment, resulting in disability, and also determines the extent of claimant's disability at the time of its rendition; but the extent of claimant's disability is subject to periodic review because physical conditions almost invariably improve or deteriorate with the passing of time. American Employer's Ins. Co. v. Hardeman, 91 Ga. App. 462, 85 S.E.2d 805 (1955).
Finding by the board that claimant was permanently and totally disabled, when appeal to the superior court was denied there and no exception was taken, does not bar rehearing on alleged ground of change in condition. Travelers Ins. Co. v. Haney, 92 Ga. App. 319, 88 S.E.2d 492 (1955).
Adjudication under former Code 1933, § 114-404 (see now O.C.G.A. § 34-9-261), relating to total disability, was not res judicata and binding on the parties in a case of an alleged change in condition subsequently arising under former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104). Brazier v. U.S. Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).
Jurisdiction.
- When an employer's overpayment claim arose out of the claimant's change in condition case, the claimant's withdrawal of a claim for reinstatement of income benefits did not operate to extinguish the jurisdiction of the Board of Workers' Compensation. Bahadori v. Sizzler, 230 Ga. App. 52, 505 S.E.2d 23 (1998).
Change in condition not prerequisite to review.
- Power of the Board of Workers' Compensation to adjudicate overpayment claims is not limited to change in condition cases; the board is authorized to adjudicate all overpayment issues. Bahadori v. Sizzler, 230 Ga. App. 52, 505 S.E.2d 23 (1998).
Change in condition as prerequisite to review.
- Right to review an award is not unlimited; there must be a change in the condition of the employee before a proceeding can be instituted to review an award. Home Accident Ins. Co. v. McNair, 173 Ga. 566, 161 S.E. 131 (1931), answer conformed to, 44 Ga. App. 659, 162 S.E. 635 (1932).
Award granting an employee compensation for the total loss of the use of a leg is not a final and conclusive adjudication as to employee's right to recover the amount of compensation granted for the number of weeks specified; such an award is subject to review by the commission (now board) upon the application of either the employer or the employee, whenever either brings oneself within the terms of Ga. L. 1920, p. 167, § 45 (see now O.C.G.A. § 34-9-104). Home Accident Ins. Co. v. McNair, 173 Ga. 566, 161 S.E. 131 (1931), answer conformed to, 44 Ga. App. 659, 162 S.E. 635 (1932).
On the hearing of an application for compensation on the ground of a change in condition, the commission (now board) can make no award of compensation unless there has been a change in condition. Interstate Tel. Co. v. Holt, 45 Ga. App. 85, 163 S.E. 234 (1932).
No provision of law is made for a second claim once there has been an adjudication, right or wrong, of the same subject matter between the same parties on the first claim, which is binding until set aside, there being no question of any change in condition. Hicks v. Standard Accident Ins. Co., 52 Ga. App. 828, 184 S.E. 808 (1936).
When there is no change in condition, department (now board) cannot rehear case on its merits and make an award increasing weekly compensation payments. Fralish v. Royal Indem. Co., 53 Ga. App. 557, 186 S.E. 567 (1936).
It is only when there has been a change in condition of the claimant since original award that the board may, on review, alter or change the original award. Ingram v. Liberty Mut. Ins. Co., 62 Ga. App. 789, 10 S.E.2d 99 (1940).
Board is without authority to increase or decrease an award for permanent partial or total disability except on a changed condition. Moore v. American Liab. Ins. Co., 67 Ga. App. 259, 19 S.E.2d 763 (1942).
Original award operates as res judicata as to all questions determined therein, and cannot be disturbed by the board except when it appears from the evidence on second hearing that since the first award the physical condition and capacity of claimant for work has changed, increasing, decreasing, or ending claimant's disability as the case may be. Hartford Accident & Indem. Co. v. Camp, 69 Ga. App. 758, 26 S.E.2d 679 (1943).
Jurisdiction of the commission (now board) to review an award is based on certain conditions precedent; there must be a change in the condition of the employee before a proceeding can be instituted to review the award. Travelers Ins. Co. v. Haney, 92 Ga. App. 319, 88 S.E.2d 492 (1955).
Board had no power to reopen or rehear a case, after a prior award, on its merits or for purposes of modification, except upon application for a hearing on a change of condition under former Code 1933, § 114-709 (see now O.C.G.A. § 34-9-104), or when an application for review had been made under former Code 1933, § 114-708 (see now O.C.G.A. § 34-9-103). Dempsey v. Chevrolet Div., 102 Ga. App. 408, 116 S.E.2d 509 (1960).
Board is an administrative body, having no jurisdiction beyond that granted to it by the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), and it does not have power to vacate or set aside an order or to modify it in the absence of a change of condition. St. Paul Fire & Marine Ins. Co. v. Bridges, 106 Ga. App. 621, 127 S.E.2d 699 (1962).
When, after application by employee for determination of a change in condition resulting from alleged reinjury was denied, employee filed an original application for compensation based upon the same occurrence, denial of compensation on basis of res judicata was authorized. Hartley v. Aetna Cas. & Sur. Co., 115 Ga. App. 697, 155 S.E.2d 716 (1967).
Board has no authority or power to vacate, set aside, or modify a final award in the absence of a change of condition. Bush v. Fidelity & Cas. Co., 121 Ga. App. 718, 175 S.E.2d 114 (1970).
Board does not have authority to modify an award in the absence of a change in claimant's condition. Fulton Cotton Mills v. Lashley, 123 Ga. App. 528, 182 S.E.2d 180 (1971).
Inquiry authorized to be made on review under this section was strictly limited to a change in condition. Hartford Accident & Indem. Co. v. Webb, 109 Ga. App. 667, 137 S.E.2d 362 (1964); Security Ins. Group v. Gillespie, 125 Ga. App. 163, 186 S.E.2d 575 (1971).
Showing of search for employment not required.
- Workers' compensation claimant who is on restricted duty due to a compensable injury and is discharged because of those restrictions is not required to show that claimant has made a diligent effort to obtain employment in order to receive benefits. Padgett v. Waffle House, Inc., 269 Ga. 105, 498 S.E.2d 499 (1998).
Although an employer's claim for repayment of income benefits can be brought before the Workers' Compensation Board, O.C.G.A. § 34-9-104(d)(2) is not so broad as to allow an employer to seek repayment of any overpayment under any circumstance. Rather paragraph (d)(2) is narrowly tailored so as to permit the Board to adjudicate an overpayment claim only when it arises in the context of a change of condition hearing. Bahadori v. National Union Fire Ins. Co., 270 Ga. 203, 507 S.E.2d 467 (1998).
Board not authorized to entertain application based on change in condition after denial of compensation.
- Commission (now board) does not have authority, after a full hearing and rendition of an award denying compensation to which no appeal is entered, to entertain another application by an employee, filed after the time provided for entering appeal, for compensation for the same injury, based upon an alleged change in condition. Martin v. United States Fid. & Guar. Co., 58 Ga. App. 59, 197 S.E. 660 (1938); Carney v. Travelers Ins. Co., 101 Ga. App. 42, 112 S.E.2d 696 (1960).
If original award of the board adjudicates that employee is not entitled to compensation in any amount, and no appeal is duly taken therefrom, doctrine of res judicata applies to this determination; hence, the physical condition of an employee does not remain open for further inquiry, and the case is ended. Rhindress v. Atlanta Steel Co., 71 Ga. App. 898, 32 S.E.2d 554 (1944).
When there is an award denying compensation on an initial hearing of a claim, there can be no review of the award because of a change in condition, no matter what the reason for denial of compensation was. U.S. Fid. & Guar. Co. v. Garner, 76 Ga. App. 87, 45 S.E.2d 109 (1947).
Notice to employee of benefit change.
- Employer was not entitled to reduction of employee's disability benefits from the temporary total disability rate to the temporary partial disability rate since the employer failed to give the employee notice within 60 days of the employee's release to return to work pursuant to O.C.G.A. § 34-9-104. City of Atlanta v. Sumlin, 258 Ga. App. 643, 574 S.E.2d 827 (2002).
When an employer failed to give proper notice to an employee of a reduction in benefits from temporary total disability to temporary partial disability, O.C.G.A. § 34-9-104(a)(1) did not require that the employee had to undergo a change in status before the employer could again seek to reduce the employee's benefits. Kaolin v. Blackshear, 306 Ga. App. 491, 702 S.E.2d 440 (2010).
Notice of a reduction in benefits that was provided by an employer to an employee was generated over five months from the last medical evaluation and over four months from the functional capacity evaluation referenced in that notice. Therefore, regardless of when that notice was articulated, it could not have been based upon any determination within the required time period. Kaolin v. Blackshear, 306 Ga. App. 491, 702 S.E.2d 440 (2010).
Running of limitation period at time of original injury against claim for change of condition.
- Limitation period in effect at the time of claimant's original injury did not begin to run against the employee's claim for change of condition until the form giving notice of final payment of benefits was filed. Georgia Forestry Comm'n v. Darley, 165 Ga. App. 641, 353 S.E.2d 818 (1983).
Claimant's application for weekly benefits based on a change in condition was not barred by the two-year statute of limitations in former subsection (b), which did not commence on the date on which the employer filed the notice of final payment because of the continued payment of medical benefits by the employer. Georgia-Pacific Corp. v. Sanders, 171 Ga. App. 799, 320 S.E.2d 850 (1984) (decided under section existing prior to 1978 amendment, as claim arose from injury occurring in 1974).
Statute of limitations does not begin to run from a notice of "final payment" of a claim when final payment has not actually been made. Dunaway v. R.I.A.S., Inc., 176 Ga. App. 181, 335 S.E.2d 470 (1985).
"Actually made" meant when last payment was mailed to the recipient.
- Employee's claim for reinstatement of income benefits was barred by the two-year statute of limitations, O.C.G.A. § 34-9-104(b), because the last payment was made more than two years before the employee filed the claim; the Workers' Compensation Board's determination that a payment was "actually made" when the payment was mailed to the recipient was reasonable and entitled to deference. Lane v. Williams Plant Servs., 330 Ga. App. 416, 766 S.E.2d 482 (2014).
Cited in U.S. Cas. Co. v. Smith, 34 Ga. App. 363, 129 S.E. 880 (1925); Robertson v. Aetna Life Ins. Co., 37 Ga. App. 703, 141 S.E. 504 (1928); Home Accident Ins. Co. v. McNair, 44 Ga. App. 659, 162 S.E. 635 (1932); Sears, Roebuck & Co. v. Griggs, 48 Ga. App. 585, 173 S.E. 194 (1934); Helms v. Continental Cas. Co., 50 Ga. App. 267, 177 S.E. 915 (1934); Columbia Cas. Co. v. Whiten, 51 Ga. App. 42, 179 S.E. 630 (1935); Wilkins v. Travelers Ins. Co., 52 Ga. App. 142, 182 S.E. 628 (1935); Continental Cas. Co. v. Haynie, 182 Ga. 608, 186 S.E. 683 (1936); Fidelity & Cas. Co. v. Clements, 53 Ga. App. 622, 186 S.E. 764 (1936); London Guarantee & Accident Co. v. Ritchey, 53 Ga. App. 628, 186 S.E. 863 (1936); Travelers Ins. Co. v. Reid, 54 Ga. App. 13, 186 S.E. 887 (1936); Miller v. Indemnity Ins. Co., 55 Ga. App. 644, 190 S.E. 868 (1937); Travelers Ins. Co. v. Anderson, 185 Ga. 105, 194 S.E. 193 (1937); Thomas v. Lumbermens Mut. Cas. Co., 57 Ga. App. 434, 195 S.E. 894 (1938); Milam v. Ford Motor Co., 61 Ga. App. 614, 7 S.E.2d 37 (1940); Employers' Liab. Assurance Corp. v. Johnson, 62 Ga. App. 416, 8 S.E.2d 542 (1940); McFarley v. New Amsterdam Cas. Co., 63 Ga. App. 344, 11 S.E.2d 76 (1940); American Mut. Liab. Ins. Co. v. Jenkins, 63 Ga. App. 777, 12 S.E.2d 80 (1940); Bituminous Cas. Corp. v. Lockett, 65 Ga. App. 829, 16 S.E.2d 614 (1941); City of Hapeville v. Preston, 67 Ga. App. 350, 20 S.E.2d 202 (1942); Lumbermen's Mut. Cas. Co. v. Cook, 195 Ga. 397, 24 S.E.2d 309 (1943); Kirkland v. Employers Liab. Assurance Corp., 195 Ga. 402, 24 S.E.2d 676 (1943); London Guarantee & Accident Co. v. Pittman, 69 Ga. App. 146, 25 S.E.2d 60 (1943); Kirkland v. Employers Liab. Assurance Corp., 69 Ga. App. 433, 25 S.E.2d 723 (1943); Fidelity & Cas. Co. v. Brooks, 70 Ga. App. 355, 28 S.E.2d 343 (1943); Hardware Mut. Cas. Co. v. Wilson, 72 Ga. App. 574, 34 S.E.2d 634 (1945); Maryland Cas. Co. v. Stephens, 76 Ga. App. 723, 47 S.E.2d 108 (1948); Wiley v. Bituminous Cas. Co., 76 Ga. App. 862, 47 S.E.2d 652 (1948); Georgia Marine Salvage Co. v. Merritt, 82 Ga. App. 111, 60 S.E.2d 419 (1950); Fulton Bag & Cotton Mills v. Dean, 82 Ga. App. 494, 61 S.E.2d 584 (1950); Royal Indem. Co. v. Bannister, 82 Ga. App. 845, 62 S.E.2d 765 (1950); Great Am. Indem. Co. v. Usry, 87 Ga. App. 821, 75 S.E.2d 270 (1953); National Sur. Corp. v. Orvin, 209 Ga. 878, 76 S.E.2d 705 (1953); Fulton Bag & Cotton Mills v. Speaks, 90 Ga. App. 685, 83 S.E.2d 872 (1954); Arnold v. Indemnity Ins. Co., 94 Ga. App. 493, 95 S.E.2d 29 (1956); Ideal Mut. Ins. Co. v. Ray, 94 Ga. App. 785, 96 S.E.2d 377 (1956); Borden v. Fuerlinger, 95 Ga. App. 556, 98 S.E.2d 410 (1957); Fireman's Fund Indem. Co. v. Wade, 97 Ga. App. 125, 102 S.E.2d 640 (1958); Cowart v. Employers Mut. Liab. Ins. Co., 98 Ga. App. 126, 105 S.E.2d 384 (1958); Milledgeville State Hosp. v. Clodfelter, 99 Ga. App. 49, 107 S.E.2d 289 (1959); National Sur. Corp. v. Nelson, 99 Ga. App. 95, 107 S.E.2d 718 (1959); Simpson v. Liberty Mut. Ins. Co., 99 Ga. App. 629, 109 S.E.2d 876 (1959); Manus v. Liberty Mut. Ins. Co., 100 Ga. App. 289, 111 S.E.2d 103 (1959); American Sur. Corp. v. Bush, 100 Ga. App. 819, 112 S.E.2d 635 (1959); Allen v. Queen Ins. Co., 101 Ga. App. 9, 112 S.E.2d 772 (1960); Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, 113 S.E.2d 611 (1960); Liberty Mut. Ins. Co. v. Simpson, 101 Ga. App. 480, 114 S.E.2d 141 (1960); St. Paul Fire & Marine Ins. Co. v. White, 103 Ga. App. 607, 120 S.E.2d 144 (1961); Fidelity & Cas. Co. v. King, 104 Ga. App. 261, 121 S.E.2d 284 (1961); St. Paul Fire & Marine Ins. Co. v. Durden, 104 Ga. App. 541, 122 S.E.2d 262 (1961); Green v. Lumbermen's Mut. Cas. Co., 105 Ga. App. 540, 124 S.E.2d 925 (1962); Cardin v. Riegel Textile Corp., 217 Ga. 797, 125 S.E.2d 62 (1962); American Mut. Liab. Ins. Co. v. Quick, 106 Ga. App. 59, 126 S.E.2d 431 (1962); Complete Auto Transit, Inc. v. Davis, 106 Ga. App. 369, 126 S.E.2d 909 (1962); Anglin v. St. Paul-Mercury Indem. Co., 106 Ga. App. 395, 126 S.E.2d 913 (1962); Zurich Ins. Co. v. Cooper, 106 Ga. App. 437, 127 S.E.2d 165 (1962); Surmiak v. Standard Accident Ins. Co., 106 Ga. App. 479, 127 S.E.2d 334 (1962); Continental Cas. Co. v. Bump, 106 Ga. App. 826, 128 S.E.2d 525 (1962); Fidelity & Cas. Co. v. Parham, 218 Ga. 640, 129 S.E.2d 868 (1963); Armour & Co. v. Youngblood, 107 Ga. App. 505, 130 S.E.2d 786 (1963); Awbrey v. Davis, 219 Ga. 598, 134 S.E.2d 785 (1964); Cardin v. Riegel Textile Corp., 219 Ga. 695, 135 S.E.2d 284 (1964); Murdock v. Perkins, 219 Ga. 756, 135 S.E.2d 869 (1964); Bump v. Continental Cas. Co., 109 Ga. App. 228, 136 S.E.2d 14 (1964); Employers Ins. Co. v. Wright, 110 Ga. App. 773, 140 S.E.2d 51 (1964); Hackel v. Fidelity & Cas. Co., 111 Ga. App. 190, 140 S.E.2d 923 (1965); Pittsburgh Plate Glass Co. v. Bailey, 111 Ga. App. 609, 142 S.E.2d 388 (1965); Brown v. Liberty Mut. Ins. Co., 113 Ga. App. 490, 148 S.E.2d 436 (1966); Proctor v. Dixie Bell Mills, Inc., 113 Ga. App. 787, 149 S.E.2d 550 (1966); Travelers Ins. Co. v. Floyd, 114 Ga. App. 487, 151 S.E.2d 816 (1966); Fidelity & Cas. Co. v. Whitehead, 114 Ga. App. 630, 152 S.E.2d 706 (1966); Stone v. Citizens Cas. Co., 114 Ga. App. 805, 152 S.E.2d 894 (1966); Aetna Cas. & Sur. Co. v. Groover, 115 Ga. App. 418, 154 S.E.2d 828 (1967); National Engine Rebuilding, Inc. v. Noles, 116 Ga. App. 762, 159 S.E.2d 178 (1967); Simpson v. Travelers Ins. Co., 117 Ga. App. 43, 159 S.E.2d 294 (1967); Standard Accident Ins. Co. v. Skinner, 118 Ga. App. 288, 163 S.E.2d 321 (1968); Snider v. Liberty Mut. Ins. Co., 119 Ga. App. 118, 166 S.E.2d 379 (1969); McMullen v. Liberty Mut. Ins. Co., 119 Ga. App. 410, 167 S.E.2d 360 (1969); Mauldin v. Georgia Cas. Sur. Co., 119 Ga. App. 406, 167 S.E.2d 371 (1969); Sessoms Co. v. Colburn, 225 Ga. 238, 167 S.E.2d 643 (1969); Hartford Accident & Indem. Co. v. Carroll, 121 Ga. App. 78, 172 S.E.2d 869 (1970); Williams v. Bituminous Cas. Co., 121 Ga. App. 175, 173 S.E.2d 250 (1970); City of Atlanta v. Price, 121 Ga. App. 240, 173 S.E.2d 750 (1970); Morris v. Liberty Mut. Ins. Co., 122 Ga. App. 436, 177 S.E.2d 174 (1970); Martin v. GMC, Fisher Body Div., 226 Ga. 860, 178 S.E.2d 183 (1970); Davis v. Caldwell, 53 F.R.D. 373 (N.D. Ga. 1971); Employers Mut. Liab. Ins. Co. v. Turner, 126 Ga. App. 24, 189 S.E.2d 862 (1972); New Hampshire Ins. Co. v. Riddle, 126 Ga. App. 96, 190 S.E.2d 100 (1972); Maryland Cas. Co. v. Johnson, 126 Ga. App. 468, 191 S.E.2d 90 (1972); Zurich Ins. Co. v. Robinson, 127 Ga. App. 113, 192 S.E.2d 533 (1972); Liberty Mut. Ins. Co. v. Williams, 129 Ga. App. 354, 199 S.E.2d 673 (1973); Coggins Granite Indus., Inc. v. Jones, 129 Ga. App. 886, 201 S.E.2d 646 (1973); Morrison Assurance Co. v. Hodges, 130 Ga. App. 436, 203 S.E.2d 629 (1973); Purser v. Hartford Accident & Indem. Co., 131 Ga. App. 508, 206 S.E.2d 100 (1974); Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443, 206 S.E.2d 693 (1974); Pope v. Aetna Life & Cas. Co., 132 Ga. App. 798, 209 S.E.2d 246 (1974); Pritchett v. Liberty Mut. Ins. Co., 133 Ga. App. 505, 211 S.E.2d 443 (1974); Kay v. Maryland Cas. Co., 135 Ga. App. 108, 217 S.E.2d 413 (1975); Gulf Ins. Co. v. Williamson, 137 Ga. App. 79, 222 S.E.2d 885 (1975); Webb v. U.S. Fid. & Guar. Ins. Co., 139 Ga. App. 494, 229 S.E.2d 7 (1976); Insurance Co. of N. Am. v. Puckett, 139 Ga. App. 772, 229 S.E.2d 550 (1976); Security Ins. Group v. Slusher, 141 Ga. App. 307, 233 S.E.2d 268 (1977); Fieldcrest Mills, Inc. v. Richard, 141 Ga. App. 702, 234 S.E.2d 345 (1977); Southern Bell Tel. & Tel. Co. v. Lemmon, 142 Ga. App. 141, 235 S.E.2d 588 (1977); St. Paul Fire & Marine Ins. Co. v. Lee, 142 Ga. App. 233, 235 S.E.2d 659 (1977); Hartford Ins. Co. v. White, 142 Ga. App. 307, 235 S.E.2d 740 (1977); Argonaut Ins. Co. v. Marshall, 144 Ga. App. 217, 240 S.E.2d 767 (1977); Jackson v. Georgia Bldg. Auth., 144 Ga. App. 275, 241 S.E.2d 54 (1977); Jackson v. Seaboard Fire & Marine Ins. Co., 144 Ga. App. 531, 241 S.E.2d 636 (1978); Gardner v. Fireman's Fund Ins. Co., 145 Ga. App. 863, 245 S.E.2d 19 (1978)
City Council v. Nevils, 149 Ga. App. 688, 255 S.E.2d 140 (1979); Owens-Illinois, Inc. v. Lewis, 150 Ga. App. 637, 258 S.E.2d 293 (1979); Southern Cotton Oil Co. v. Lockett, 150 Ga. App. 835, 258 S.E.2d 644 (1979); Outler v. Southern Bell Tel. & Tel. Co., 152 Ga. App. 424, 263 S.E.2d 230 (1979); Bond v. Employers Ins. Co., 154 Ga. App. 244, 268 S.E.2d 354 (1980); Smith v. Van's Equip. Co., 158 Ga. App. 460, 280 S.E.2d 870 (1981); Beers Constr. Co. v. Stephens, 162 Ga. App. 87, 290 S.E.2d 181 (1982); Hart v. Owens-Illinois, Inc., 250 Ga. 397, 297 S.E.2d 462 (1982); Coosa Baking Co. v. Thomas, 165 Ga. App. 313, 299 S.E.2d 145 (1983); Buckley v. Sears Roebuck & Co., 165 Ga. App. 838, 299 S.E.2d 744 (1983); Hart v. Owens-Illinois, Inc., 165 Ga. App. 681, 302 S.E.2d 701 (1983); Georgia Power Co. v. Brown, 169 Ga. App. 45, 311 S.E.2d 236 (1983); Moore Bus. Forms, Inc. v. Matthews, 170 Ga. App. 106, 316 S.E.2d 552 (1984); Georgia Mental Health Inst. v. Padgett, 171 Ga. App. 353, 319 S.E.2d 524 (1984); Hampton v. Howard Baer, Inc., 172 Ga. App. 513, 323 S.E.2d 701 (1984); Scandrett v. Talmadge Farms, Inc., 174 Ga. App. 547, 330 S.E.2d 772 (1985); Brake Supply Co. v. Banks, 175 Ga. App. 242, 333 S.E.2d 129 (1985); ITT-Thompson Indus., Inc. v. Wheeler, 179 Ga. App. 92, 345 S.E.2d 614 (1986); Caldwell v. Perry, 179 Ga. App. 682, 347 S.E.2d 286 (1986); Sanders v. Georgia-Pacific Corp., 181 Ga. App. 757, 353 S.E.2d 849 (1987); Jackson v. Peachtree Hous. Div., 187 Ga. App. 612, 371 S.E.2d 112 (1988); Raley v. Lanco Paint & Drywall, 190 Ga. App. 462, 379 S.E.2d 196 (1989); Transus, Inc. v. Fleck, 204 Ga. App. 306, 418 S.E.2d 817 (1992); Watson v. Universal Ceramics, Inc., 209 Ga. App. 135, 433 S.E.2d 104 (1993); Atlanta Hilton & Towers v. Gaither, 210 Ga. App. 343, 436 S.E.2d 71 (1993); State v. Bardge, 211 Ga. App. 307, 439 S.E.2d 1 (1993); Continental Grain Co. v. Thomas, 218 Ga. App. 240, 459 S.E.2d 623 (1995); L.C.P. Chems. v. Strickland, 221 Ga. App. 742, 472 S.E.2d 471 (1996); Georgia-Pacific Corp. v. Arline, 225 Ga. App. 800, 484 S.E.2d 678 (1997); Mickens v. Western Probation Detention Ctr., 244 Ga. App. 268, 534 S.E.2d 927 (2000); Baugh-Carroll v. Hospital Auth., 248 Ga. App. 591, 545 S.E.2d 690 (2001); City of Poulan v. Hodge, 275 Ga. 483, 569 S.E.2d 499 (2002); Stephenson v. Roper Pump Co., 261 Ga. App. 131, 581 S.E.2d 741 (2003); Reliance Elec. Co. v. Brightwell, 284 Ga. App. 235, 643 S.E.2d 742 (2007).
Overpayments
Statutes of limitations applicable to overpayment claims.
- Because O.C.G.A. § 34-9-104 (d)(2) provides that a claim for overpayment of benefits can only be brought within the context of a change of condition case, the two-year statute of limitations is applicable to a claim for the overpayment of income benefits, and it is of no import that this ruling results in a two-year statute for an overpayment claim in an administrative action and a four-year statute for a reimbursement claim in civil court. Bahadori v. National Union Fire Ins. Co., 270 Ga. 203, 507 S.E.2d 467 (1998).
Claimant was not entitled to temporary total disability and temporary partial disability benefits when claimant already collected a lump sum payment for permanent partial disability, and the method of crediting the overpayment was not set forth with sufficient specificity. Universal Ceramics, Inc. v. Watson, 177 Ga. App. 345, 339 S.E.2d 304 (1985).
Applicability of section to overpayments.
- Two-year limitation period for modification of a prior award based on a change of condition, contained in O.C.G.A. § 34-9-104(b), does not apply to overpayment cases; instead the four-year limitation period contained in O.C.G.A. § 9-3-25 applies. Bahadori v. Sizzler, 230 Ga. App. 52, 505 S.E.2d 23 (1998).
Repayment of overpayments.
- Effect of the 1978 amendment, which expanded the jurisdiction of the board to include the power to order an employee to repay to an insurer any amount determined to be overpayments of income benefits, is to economize on the number of actions necessary to finally resolve all the issues presented in an overpayment situation by eliminating the need for an insurer (or employer) to bring a second action in a different forum in order to recover the amount of the overpayment. Georgia Cas. & Sur. Co. v. Randall, 162 Ga. App. 532, 292 S.E.2d 118 (1982), overruled on other grounds, Bahadori v. Sizzler #1543, 230 Ga. App. 52, 505 S.E.2d 23 (1997), Bahadori v. National Union Fire Ins. Co., 270 Ga. 203, 507 S.E.2d 467 (1998).
Since Ga. L. 1978, p. 2220 is applicable to actions taken on or after July 1, 1978, (except for provisions of that Act creating substantive rights) and since the right of action for money had and received existed before its enactment, the board is competent to make a determination as to repayment of overpayments for injuries occurring before July 1, 1978. Georgia Cas. & Sur. Co. v. Randall, 162 Ga. App. 532, 292 S.E.2d 118 (1982), overruled on other grounds, Bahadori v. Sizzler #1543, 230 Ga. App. 52, 505 S.E.2d 23 (1997), Bahadori v. National Union Fire Ins. Co., 270 Ga. 203, 507 S.E.2d 467 (1998).
Action by workers' compensation carrier to recover overpayment of benefits is in the nature of an action for money had and received. Georgia Cas. & Sur. Co. v. Randall, 162 Ga. App. 532, 292 S.E.2d 118 (1982), overruled on other grounds, Bahadori v. Sizzler #1543, 230 Ga. App. 52, 505 S.E.2d 23 (1997), Bahadori v. National Union Fire Ins. Co., 270 Ga. 203, 507 S.E.2d 467 (1998).
Change in Condition
Change in award authorized when disability increases or decreases.
- When developing facts and circumstances show a change in condition with reference to claimant by reason of claimant's previous injury, such as would show an increase or decrease in the extent of claimant's disability, a former award may be changed by the department (now board) upon application for review thereof. Fralish v. Royal Indem. Co., 53 Ga. App. 557, 186 S.E. 567 (1936).
Construction of O.C.G.A.
§ 34-9-104(a)(1) and (b). - Court of Appeals properly affirmed the judgment of the superior court, noting that an award of medical expenses was held to be an award of compensation within the meaning of the original Workmen's Compensation Act, O.C.G.A. § 34-9-1 et seq., and in applying that principle to find that the change-in-condition statute applied to cases in which income benefits had not been paid. Footstar, Inc. v. Liberty Mut. Ins. Co., 281 Ga. 448, 637 S.E.2d 692 (2006).
Award for total disability, while open-ended, subject to modification.
- Compensation for total disability is necessarily open-ended according to the terms of O.C.G.A. § 34-9-261, which sets no ceiling on the number of weeks such benefits may be required to be paid. Such an award is, however, subject to modification on the application of either party based on a change in condition. Diers v. House of Hines, Inc., 168 Ga. App. 282, 308 S.E.2d 611 (1983).
Separate hearing rather than retrial of issues was proper remedy.
- When claimant appellant argued that claimant received benefits only for an 18 percent permanent partial impairment, that claimant's condition had worsened since then, and that the board of workers' compensation should have scheduled another hearing to make a determination concerning an increase in that rating, appellant's remedy in this regard did not lie in seeking a retrial of the issues presented at the 1985 hearing, but in requesting a separate hearing pursuant to subsection (b) of O.C.G.A. § 34-9-104 for a change in condition within two years of the final ruling on appeal. Sanders v. Georgia-Pacific Corp., 192 Ga. App. 439, 385 S.E.2d 101, cert. denied, 192 Ga. App. 903, 385 S.E.2d 101 (1989).
Award not modifiable when condition not changed.
- When disability at first hearing was determined to be total, and at second hearing board found that the disability was continuous, but with no change in condition, board could not modify the initial award based upon a change in condition, as the extent of the disability remained the same from the time of the first hearing to the time of the application for a change in condition. Moore v. American Liab. Ins. Co., 67 Ga. App. 259, 19 S.E.2d 763 (1942).
Appellate Division of the Georgia State Board of Workers' Compensation determined that a claimant's second neck injury was not a compensable aggravation of a preexisting neck injury because the Board concluded that the claimant's neck injury had returned to the neck's pre-aggravation physical condition. Master Craft Flooring v. Dunham, 308 Ga. App. 430, 708 S.E.2d 36 (2011), cert. denied, No. S11C1045, 2011 Ga. LEXIS 496 (Ga. 2011).
Award supported by evidence of deterioration not precluded by claimant's testimony of continuous total disability.
- If claimant's condition has in fact changed for the worse, as shown by competent evidence, claimant will be entitled to a new award, even though under claimant's own testimony claimant was totally disabled at the time of both hearings, that fact alone would not preclude an award in claimant's favor otherwise supported by competent evidence that claimant's condition had in fact deteriorated. Magnus Metals Div. of Nat'l Lead Co. v. Stephens, 111 Ga. App. 448, 142 S.E.2d 123 (1965).
When a change for the worse in claimant's physical condition was shown by competent evidence, a new award was authorized, notwithstanding that claimant testified claimant's condition was worse at the second hearing but that claimant was totally incapacitated at the time of both hearings. Chattahoochee Camp Sch. v. Cole, 117 Ga. App. 505, 161 S.E.2d 78 (1968).
Claimant cannot have "change in condition" under this section unless there has been a previous award granting compensation. Hartford Accident & Indem. Co. v. Mauldin, 147 Ga. App. 230, 248 S.E.2d 528 (1978); Paideia Sch. v. Geiger, 192 Ga. App. 723, 386 S.E.2d 381 (1989).
Employee was erroneously awarded workers' compensation benefits for a change in condition under O.C.G.A. § 34-9-104(a)(1) because the employee had not previously received an award of workers' compensation benefits for the employee's job-related shoulder injury. Trucks, Inc. v. Trowell, 302 Ga. App. 488, 690 S.E.2d 880 (2010).
Prior award required.
- When no prior award was ever made between the parties or approved by the board, statutory provision relating to "change of condition" is not applicable. Williams v. Morrison Assurance Co., 138 Ga. App. 191, 225 S.E.2d 778 (1976).
Claimant must have previously received benefits.
- "Change in condition" can occur only when the claimant has previously received benefits for a compensable job-related injury. Thus, when claimant never received workers' compensation benefits for claimant's original on-the-job injury, then, by definition, claimant cannot have undergone a "change in condition", and the administrative law judge's finding that claimant sustained a "change in condition" was erroneous as a matter of law. Northbrook Property & Cas. Ins. Co. v. Babyak, 186 Ga. App. 339, 367 S.E.2d 567, writ of cert. vacated, 258 Ga. 484, 373 S.E.2d 21 (1988).
Current workers' compensation insurer was responsible for a custodian's claims because the claims did not constitute a change of condition related to an August 1, 2000, incident under O.C.G.A. § 34-9-104 because the custodian only received medical benefits, not income benefits, prior to 2005 when the custodian was forced to stop working and filed a claim; thus, the claim constituted a fictional new accident. Laurens County Bd. of Educ. v. Dewberry, 296 Ga. App. 204, 674 S.E.2d 73 (2009).
"Potential" benefits at time of injury bars modification.
- When there is evidence to support a finding that a claimant was potentially due other income benefits at the time of the compensable injury and was not paid such benefits, O.C.G.A. § 34-9-104(b) is not applicable. "Potential" means not that the type of disability may arise in the future, but rather that there is evidence that it existed at the time, although no claim was made for it. Justice v. R.D.C., Inc., 187 Ga. App. 198, 369 S.E.2d 493 (1988).
Disability plan payment not change in condition.
- Disability plan payments to an employee did not constitute a "change in condition" authorizing modification of an award of compensation benefits. Webb v. City of Atlanta, 228 Ga. App. 278, 491 S.E.2d 492 (1997).
Increased award not justified by proof of greater disability prior to original award.
- Mere proof by claimant that prior to the original award claimant was injured in a greater degree than that found by the board and that claimant's original injury has continued in the same degree and to the same extent does not justify an increased award based on change of condition, such change not having occurred subsequent to the award. Travelers Ins. Co. v. Hammond, 90 Ga. App. 595, 83 S.E.2d 576 (1954).
"Maximum improvement" not ground for hearing.
- Since "maximum improvement" has no place in workers' compensation law, when a request for hearing on this ground is made it should be declined. Brazier v. United States Fid. & Guar. Co., 99 Ga. App. 588, 109 S.E.2d 309 (1959).
Section inapplicable to new and distinct injury.
- This section applied only to a change in condition of an original injury and had no relationship to a new and distinct injury. Reliance Ins. Co. v. Jones, 149 Ga. App. 298, 254 S.E.2d 388 (1979).
Words "change in condition" apply only to a change in condition of the original injury, and have no relationship to a new and distinct injury. Employers Mut. Liab. Ins. Co. v. Young, 129 Ga. App. 282, 199 S.E.2d 552 (1973), later appeal, 134 Ga. App. 369, 214 S.E.2d 381 (1975).
Change in condition means different condition from that existent when award was made; hence, a continued incapacity of the same kind and character, for the same injury, is not a change in condition. Hartford Accident & Indem. Co. v. Carroll, 75 Ga. App. 437, 43 S.E.2d 722 (1947).
When hearing is sought for the purpose of increasing or decreasing compensation payable on the basis of a change of condition, the evidence must show a changed condition arising from future developments, as distinguished from conditions existing at the time of the original award or settlement. Riegel Textile Corp. v. Vinyard, 88 Ga. App. 753, 77 S.E.2d 760 (1953).
By "change in condition" is meant a change in physical condition of claimant subsequent to entering of award; and when on a hearing based on a change in condition it appears that claimant's condition has not changed for the worse since the previous award, the claimant cannot prevail, even though the previous award gave claimant a rating of disability less than claimant actually suffered or erroneously denied claimant compensation altogether. Magnus Metals Div. of Nat'l Lead Co. v. Stephens, 111 Ga. App. 448, 142 S.E.2d 123 (1965).
Change in condition exists when maximum improvement has not been reached and subsequent developments show additional impairment, and does not exist when condition of claimant is the same as at the time of initial hearing. Ingram v. Liberty Mut. Ins. Co., 62 Ga. App. 789, 10 S.E.2d 99 (1940).
Evidence showing change in condition since original award required.
- In order for an award finding a change in condition to be authorized, there must be evidence to authorize finding that claimant's condition has changed since the original award. Travelers Ins. Co. v. Boyer, 102 Ga. App. 248, 116 S.E.2d 6 (1960).
Subsequent to award.
- Change in condition referred to in this section was one which occurred subsequently to an award. Chicago Bridge & Iron Co. v. Cole, 70 Ga. App. 599, 28 S.E.2d 900 (1944).
Statutory test for "change in condition" under this section was economic condition proximately caused by previous accidental injury. Jenkins Enters., Inc. v. Williams, 122 Ga. App. 840, 178 S.E.2d 926 (1970); Morrison Assurance Co. v. Hodges, 130 Ga. App. 436, 203 S.E.2d 629 (1973); North Ga. Technical & Vocational Sch. v. Boatwright, 144 Ga. App. 66, 240 S.E.2d 563 (1977); Employers Ins. v. Carnes, 148 Ga. App. 767, 252 S.E.2d 654 (1979).
When injury is one that comes within the provisions of former Code 1933, § 114-404 or § 114-405 (see now O.C.G.A. § 34-9-261 or O.C.G.A. § 34-9-262), relating to total and temporary partial disability, "change in condition" meant an economic change in condition occasioned by employee's return or ability to return to work for the same or any other employer. Morrison Assurance Co. v. Hodges, 130 Ga. App. 436, 203 S.E.2d 629 (1973).
In order for the board to terminate employee's eligibility for benefits, evidence must prove an improved economic condition. Spell v. Travelers Ins. Co., 147 Ga. App. 160, 248 S.E.2d 292 (1978).
Even though claimant's physical condition may have remained unchanged, a change in earning capacity predicated upon the accidental injury is considered a change in condition. Hartford Accident & Indem. Co. v. Bristol, 242 Ga. 287, 248 S.E.2d 661 (1978).
This section was designed to determine whether an economic change in condition had occurred, for better or for worse, so that a change in income benefits was appropriate. General Ins. Co. of Am. v. Bradley, 152 Ga. App. 600, 263 S.E.2d 446 (1979).
Change in claimant's earning capacity predicated upon accidental injury is considered "change in condition". Employers Ins. v. Carnes, 148 Ga. App. 767, 252 S.E.2d 654 (1979).
Administrative law judge (ALJ) should have considered a claimant's entitlement to temporary partial disability benefits in a case in which the claimant was fired from the job at which the disabling injury was incurred and, after a diligent job search, the claimant took a lesser paying job as a waitress for a continuing disability incident to the compensable one; the ALJ improperly imposed an additional burden of proof on the claimant by requiring the claimant to prove that the acceptance of lower-paying employment was proximately caused by the compensable work-related injury. Roberts v. Jones Co., 277 Ga. App. 517, 627 S.E.2d 139 (2006).
Ability or inability to work determinative.
- Board does not have jurisdiction to determine anything but a change in condition in the economic status of the employee occasioned by the employee's ability or inability to return to work for the same or any other employer, which inability is proximately caused by accidental injury. Burkhart v. Argonaut Ins. Co., 239 Ga. 608, 238 S.E.2d 400 (1977).
Inability of employer to provide work as "change in condition."
- When claimant was able and willing to work but employer could no longer provide claimant with work which claimant was physically capable of doing, claimant suffered an "economic change in condition" under this section, and was entitled to benefits for partial disability. Jenkins Enters., Inc. v. Williams, 122 Ga. App. 840, 178 S.E.2d 926 (1970).
Employee required to show causal relationships between injury and inability to secure job.
- When employee sustained a compensated back injury and after medical treatment returned to work with the same employer, performing less strenuous duties, but was thereafter laid off when the employer had no more work for the employees, the employee was required by this section to prove that the employee's inability to secure suitable employment elsewhere was proximately caused by the employee's previous accidental injury. Hartford Accident & Indem. Co. v. Bristol, 242 Ga. 287, 248 S.E.2d 661 (1978).
Claimant seeking modification of an award or order was required by this section to show that inability to secure suitable employment was proximately caused by previous accidental injury. Employers Ins. v. Carnes, 148 Ga. App. 767, 252 S.E.2d 654 (1979); Independent Life & Accident Ins. Co. v. Cox, 207 Ga. App. 402, 427 S.E.2d 862 (1993).
Stroke suffered by employee after termination of employment could not be considered compensable as a "superadded injury" when it neither constituted a "change in condition" nor occurred on the job. Paideia Sch. v. Geiger, 192 Ga. App. 723, 386 S.E.2d 381 (1989).
When the employer terminated the claimant for a reason unrelated to claimant's original work injury, the fact that the claimant did not actually return to work before the termination did not affect the need for claimant to connect the economic change to the work injury as cause and to show a diligent but unsuccessful effort to find suitable employment following termination. Waycross Molded Prods., Inc. v. McKelvin, 234 Ga. App. 46, 505 S.E.2d 826 (1998).
Employment offered must be suitable to employee's injured capacity.
- When there is absolutely no evidence that the employment offered the employee is suitable to the employee's injured capacity, the mere refusal of such employee to continue in the employment of the employer after having received an injury does not bar the employee from compensation. DeKalb County Merit Sys. v. Johnson, 151 Ga. App. 405, 260 S.E.2d 506 (1979).
Superior court erroneously reversed the decision of the Georgia Board of Workers' Compensation's Appellate Division that the former employer did not show under O.C.G.A. § 34-9-104(a) that suitable work was available; evidence supported the Division's decision, as many of the jobs recommended by the rehabilitation counselor were unsuitable, and even if the Division found that the counselor failed to take actions that would have violated Board rules and subjected the counselor to civil penalties under O.C.G.A. § 34-9-18, this did not render insufficient evidence sufficient. Korner v. Educ. Mgmt. Corp., 281 Ga. App. 322, 635 S.E.2d 892 (2006), cert. denied, 2007 Ga. LEXIS 104 (Ga. 2007).
Claimant must show inability to work for any employer.
- In a change in condition hearing, burden is on claimant to show that because of change claimant is unable to work for any employer; by making no effort to obtain other work suitable to claimant's impaired physical condition, claimant fails to prove claimant is unable to work for any employer. Brown v. Gulf Ins. Co., 141 Ga. App. 819, 234 S.E.2d 552 (1977).
Economic change of condition resulted when claimant returned to work after claimant's original compensable injury and without approval of claimant's attending physician and was given light duties for four weeks, and then was required by the employer to operate a machine similar to the one on which claimant was originally injured, and upon refusal to do so because of weakened condition, was discharged; employer's action could be the basis for compensation. Bibb Co. v. Epps, 143 Ga. App. 540, 239 S.E.2d 210 (1977).
Loss of job for economic reasons not connected with physical condition did not show change in condition as contemplated by this section. Royal Indem. Co. v. Warren, 102 Ga. App. 501, 116 S.E.2d 757 (1960).
Showing of improved economic condition by return to work or ability to do so.
- Improved economic condition is proved by evidence that employee's physical condition has improved to the point that the employee has either already returned to work or has the ability to return to work for the same or any other employer. Spell v. Travelers Ins. Co., 147 Ga. App. 160, 248 S.E.2d 292 (1978).
Medical evidence which established without dispute that claimant had been released to return to work, both by claimant's treating physician and by a consulting neurosurgeon prior to the suspension of benefits, authorized the board, as the finder of fact, to conclude that the employer carried its burden of proving that claimant was no longer suffering from any disability as a result of claimant's work-related injury. Fairway Transp., Inc. v. Brewer, 192 Ga. App. 871, 386 S.E.2d 674, cert. denied, 192 Ga. App. 901, 386 S.E.2d 674 (1989).
Merely going back to work does not show change in condition for the better. Liberty Mut. Ins. Co. v. Archer, 108 Ga. App. 563, 134 S.E.2d 204 (1963).
Mere fact of employee's return to work does not conclusively show that the employee has recovered from an injury. Liberty Mut. Ins. Co. v. Archer, 108 Ga. App. 563, 134 S.E.2d 204 (1963).
Mere fact of employee's return to work does not conclusively show that the employee has recovered from an injury, nor does it show a change in condition for the better. Commonwealth Ins. Co. v. Arnold, 112 Ga. App. 140, 144 S.E.2d 194 (1965).
Termination of benefits when employee no longer medically restricted from performance of available job.
- When there was medical testimony that neither the employee's physical nor psychological illnesses would prohibit the employee from returning to work, and competent evidence that the employee's medical restrictions would not prevent the employee from performing the job made available to the employee by the employer, the board was authorized to conclude that the employee's change in condition precluded continuation of the employee's disability benefits. Hart v. Owens-Illinois, Inc., 151 Ga. App. 435, 260 S.E.2d 490 (1979).
Employee undergoing change of condition may still be unable to obtain other employment.
- Evidence was sufficient to sustain a finding that claimant underwent a change of condition and was able to do light work and perform basic carpentry duties but was limited in lifting and carrying heavy items due to pain, and, while economic conditions might have been such that job opportunities in claimant's field were scarce, the medical evidence and claimant's corroborating testimony indicated that, because of claimant's disability, claimant would have been unable to obtain other employment even if it were available. King v. Piedmont-Warner Dev., 177 Ga. App. 176, 338 S.E.2d 758 (1985).
Cessation of compensation when employee recovers or earns former wage.
- In cases of temporary incapacity, compensation ceases when an employee recovers from an injury or is earning the same wage as the employee was at time of injury. Rhindress v. Atlanta Steel Co., 71 Ga. App. 898, 32 S.E.2d 554 (1944).
When claimant was fully recovered from injury received on the job and no longer suffered any disability therefrom, termination of benefits based on a change in condition was proper although claimant suffered from current disability due to an automobile accident which was not job related. Williams Bros. Lumber Co. v. Magee, 162 Ga. App. 865, 292 S.E.2d 477 (1982).
Economic gain from investment not "change in condition."
- Economic change in condition referred to in this section did not include economic improvement resulting from mere investment. Armstrong v. Allstate Ins. Co., 135 Ga. App. 278, 217 S.E.2d 486 (1975).
Showing of specific amount of wages is not so much element of proof required for a finding of change of condition as it is an item required for calculation purposes. Newton v. Liberty Mut. Ins. Co., 148 Ga. App. 224, 251 S.E.2d 138 (1978).
Requirements to terminate compensation.
- To terminate compensation because of a change in condition, an employer must show a change in the wage earning capacity, physical condition, or status of an employee, and, to do so, the employer must show the ability to return to work and that suitable work is available. Peterson/Puritan, Inc. v. Day, 157 Ga. App. 827, 278 S.E.2d 674 (1981).
Impairment of earning capacity must change to alter disability from temporary total to permanent partial.
- Mere evidence of a change in the employee's physical condition does not authorize, much less demand, a change in an employee's benefits from temporary total to permanent partial. Rather, in order to change an employee's benefits from those already being received under O.C.G.A. § 34-9-261 (temporary total) to those authorized under O.C.G.A. § 34-9-263 (permanent partial), it is necessary to show that the employee's earning capacity has changed and that the employee no longer suffers a total impairment of the employee's earning capacity as the result of the employee's work-related injury. Hensel Phelps Constr. Co. v. Manigault, 167 Ga. App. 599, 307 S.E.2d 79 (1983).
Consideration of increased pain and difficulty with resultant loss of earning capacity proper.
- When increased pain and difficulty of working result in loss of earning capacity, with consequent actual decrease of earned income, these factors may be taken into consideration on a hearing based on a change of condition for the purpose of determining the percentage of disability. Riegel Textile Corp. v. Vinyard, 88 Ga. App. 753, 77 S.E.2d 760 (1953).
Increased pain and difficulty not determinative in and of themselves.
- Inasmuch as element of pain and suffering, or increased discomfort or difficulty in performing one's duties, is not taken into consideration by the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), claimant's back injuries, in and of themselves, did not require a finding that there had been any change in condition which would authorize payment of compensation for loss of earning capacity. Hall v. St. Paul-Mercury Indem. Co., 96 Ga. App. 567, 101 S.E.2d 94 (1957).
"Change of condition" means change of physical condition of claimant subsequent to first award. Travelers Ins. Co. v. Hammond, 90 Ga. App. 595, 83 S.E.2d 576 (1954); Chevrolet Div., GMC v. Dempsey, 97 Ga. App. 309, 103 S.E.2d 81 (1958); Aetna Cas. & Sur. Co. v. Dunagan, 111 Ga. App. 801, 143 S.E.2d 423 (1965).
Meaning of change of condition.
- Proceeding under this section was to determine whether a change in the physical condition of claimant had taken place, as a matter of fact, since the previous adjudication, and consequently, to determine whether the compensation then being paid shall be ended, diminished, or increased. City of Atlanta v. Padgett, 68 Ga. App. 96, 22 S.E.2d 197 (1942).
Phrase "change in condition", within the meaning of this section, was not subject to a narrow construction and did not necessarily relate to a change in condition in respect of a particular or specific injury only; rather, said phrase had a broader meaning, and included any change in the physical condition of claimant subsequent to the entering of the award which stemmed or resulted from the accident in question. Automatic Sprinkler Corp. of Am. v. Rucker, 87 Ga. App. 375, 73 S.E.2d 609 (1952); GMC, Fisher Body Div. v. Bowman, 107 Ga. App. 335, 130 S.E.2d 163 (1963); United States Cas. Co. v. Truett, 108 Ga. App. 322, 132 S.E.2d 789 (1963).
Evidence supported the finding of the Appellate Division of the Board of Workers' Compensation that the employee experienced a change in condition for the better under O.C.G.A. § 34-9-104(a)(1), which authorized suspension of workers' compensation benefits; employee could return to medium duty maintenance work and did not need continued medical treatment. Jones County Bd. of Educ. v. Patterson, 255 Ga. App. 166, 564 S.E.2d 777 (2002).
Term "change in condition" meant a change in the wage-earning capacity, physical condition, or status of an employee and the worker had clearly experienced a change in condition in the sense that the worker's wage-earning capacity increased since the worker was laid off by a former employer and began a production company for which the worker performed almost all of the work, even though the worker received no net income from the production company since the worker put most of the worker's earnings back into the company in order to make it grow. WAGA-TV, Inc. v. Yang, 256 Ga. App. 224, 568 S.E.2d 58 (2002).
Claimant need not necessarily show change for worse.
- Claimant need not necessarily show, during a proceeding brought under this section, that claimant's medical or physical condition changed for the worse. Hartford Accident & Indem. Co. v. Bristol, 242 Ga. 287, 248 S.E.2d 661 (1978).
Change of condition for the better may be shown even though claimant is not actually working, has sought no work, may be unwilling to try to work, or has received no offer of employment from claimant's former employer or another, if there is evidence to support a finding of some improvement which discloses an ability to return to work. Hopper v. Continental Ins. Co., 121 Ga. App. 850, 176 S.E.2d 109 (1970).
Compensability of further disability or death caused by injury after return to work.
- If employee suffers a compensable injury, returns to work, and thereafter suffers further disability which was the proximate result of the injury received, such further disability was compensable; when death thereafter results to the employee, its cause being traceable to the injury received, such death was compensable. Employers' Liab. Assurance Corp. v. Johnson, 62 Ga. App. 416, 8 S.E.2d 542 (1940).
Request for catastrophic injury designation was change in condition authorizing additional TTD benefits.
- Employee's timely filing of a request for catastrophic designation, Form WC-R1CATEE, constituted a timely application for additional temporary total disability (TTD) income benefits under O.C.G.A. § 34-9-104(b), although the form contained no request for additional TTD benefits, because the request would entitle the employee to additional benefits pursuant to O.C.G.A. § 34-9-261. Ga. Inst. of Tech. v. Hunnicutt, 303 Ga. App. 536, 694 S.E.2d 190, cert. denied, No. S10C1299, 2010 Ga. LEXIS 721 (Ga. 2010).
Claim was time barred.
- Superior court erred in affirming the finding of the State Board of Workers' Compensation Appellate Division that a worker had suffered a change of condition for the worse, under O.C.G.A. § 34-9-104, not a new injury, and that the worker's change of condition claim against the employer was not time-barred by § 34-9-104 (b); in fact, the worker's claim for additional TTD benefits was time-barred because the claim was filed more than two years after the employer last paid the worker TTD benefits. Mech. Maint., Inc. v. Yarbrough, 264 Ga. App. 181, 590 S.E.2d 148 (2003).
Claimant's request for reinstatement of temporary total disability (TTD) benefits based on a change in condition was time-barred under O.C.G.A. § 34-9-104(b)'s two-year limitation period because the fact that the employer failed to serve the claimant with various forms, in violation of O.C.G.A.34-9-221(c), was not grounds for extending the statute of limitations. The issue was whether the claimant brought the claim within two years of the last TTD payment, not whether the employer properly notified the claimant that such benefits had been terminated. United Grocery Outlet v. Bennett, 292 Ga. App. 363, 665 S.E.2d 27 (2008), cert. denied, 2008 Ga. LEXIS 939 (Ga. 2008).
Appellate Division of the State Board of Workers' Compensation properly denied an employee's request for catastrophic injury payments under O.C.G.A. § 34-9-261 because the employee did not experience a "change in condition" within the limitations period under O.C.G.A. § 34-9-104(b) for purposes of additional disability income benefits. Williams v. Conagra Poultry of Athens, Inc., 295 Ga. App. 744, 673 S.E.2d 105 (2009), cert. denied, No. S09C0832, 2009 Ga. LEXIS 337 (Ga. 2009).
Administrative law judge erred in finding that an employee suffered a fictional new injury when the employee ceased working for an employer and that the employee's claim was not barred by the statute of limitation, O.C.G.A. § 34-9-104(b), because the progressive aggravation of the employee's injuries, which was caused by the performance of the employee's work duties and ultimately resulted in the employee's inability to work, could only be characterized as a change in condition under O.C.G.A. § 34-9-104(a); the employee sustained the initial injury while working for the employer, was awarded workers' compensation benefits, and after ten months, resumed employment for the next 12 years. Shaw Indus. v. Scott, 310 Ga. App. 750, 713 S.E.2d 917 (2011), aff'd, 291 Ga. 313, 729 S.E.2d 327 (2012).
Lower court properly held that an ALJ erred as a matter of law in awarding an employee workers' compensation benefits when an employee's worsening knee and gait problems constituted a change of condition as a result of a prior foot injury, not a fictional new injury, and as a result, the employee's claim was time-barred under O.C.G.A. § 34-9-104(b). Scott v. Shaw Indus., 291 Ga. 313, 729 S.E.2d 327 (2012).
Employee was not entitled to workers' compensation for knee surgery based on the two-year statute of limitation in O.C.G.A. § 34-9-104(b) because the employee had last received benefits for the employee's right knee injury over two years before the employee's claim, and the need for surgery was a change in condition for the worse and not a fictional new injury. ABF Freight Sys. v. Presley, 330 Ga. App. 885, 769 S.E.2d 611 (2015), cert. denied, 2015 Ga. LEXIS 397 (Ga. 2015).
Employee who suffered a leg amputation following a work accident and who received temporary total disability payments (TTD) until the employee returned to a light duty position in 1994 did not file a claim for the resumption of TTD benefits until 18 years later; the employee's claim was time barred under O.C.G.A. § 34-9-104(b). This was true even if the employee's workplace injury was categorized as catastrophic under O.C.G.A. § 34-9-261. Roseburg Forest Prods. Co. v. Barnes, 299 Ga. 167, 787 S.E.2d 232 (2016).
Claimant not deprived of right to compensation when disabled after time of hearing.
- When board finds that claimant suffered an accident arising out of and in the course of claimant's employment, claimant is entitled to medical expenses incurred, and when board finds that claimant may suffer further permanent disability and require an operation and incur further medical expenses, but finds that up to the time of the hearing claimant has not incurred the requisite lost time from employment to entitle claimant to temporary total compensation, claimant is not thereby deprived of claimant's right to compensation when the injury causes claimant to be unable to continue work after the time of the hearing; the facts place the case directly under the purview of "change in condition." GMC, Chevrolet Div. v. Dempsey, 93 Ga. App. 423, 91 S.E.2d 850, aff'd, 212 Ga. 560, 93 S.E.2d 703 (1956).
Effect of compensation for one of several injuries in same accident.
- When employee receives several injuries in one accident, and compensation is granted as to one but denied as to the others, such denial of compensation for the latter injuries is not res judicata and does not preclude review with regard to those injuries upon an application for review based on change in condition, for the reason that the award granting compensation as to the one injury serves to keep the case open and pending during the statutory period with regard to a change in claimant's physical condition. U.S. Fid. & Guar. Co. v. Garner, 76 Ga. App. 87, 45 S.E.2d 109 (1947).
Two specific injuries may be compensated as such.
- Two specific injuries, such as an injury to the wrist and to the back, may both result from the same accident and may be compensated for as such, even though both do not develop, arise, or become known at the same time. Automatic Sprinkler Corp. of Am. v. Rucker, 87 Ga. App. 375, 73 S.E.2d 609 (1952); GMC, Fisher Body Div. v. Bowman, 107 Ga. App. 335, 130 S.E.2d 163 (1963); U.S. Cas. Co. v. Truett, 108 Ga. App. 322, 132 S.E.2d 789 (1963).
One accident can cause two compensable injuries, one arising immediately and being temporary only, the compensation therefor being paid under an approved agreement, and the other being permanent but not becoming known until later, but within two years from the date of the payment of the approved agreement for compensation. Automatic Sprinkler Corp. of Am. v. Rucker, 87 Ga. App. 375, 73 S.E.2d 609 (1952).
Two related injuries, such as an injury to the back which first becomes disabling, and an injury to the leg, which stems from the back injury but is not disabling at first, may properly be held to result from the identical accident and may be compensated for, even though the disability from both does not develop, arise, or become known at the same time. GMC, Fisher Body Div. v. Bowman, 107 Ga. App. 335, 130 S.E.2d 163 (1963).
Compensability for change from specific to general disability.
- Under this section, additional compensation may be awarded for a change in condition from a specific disability to a general disability. Waters v. NABISCO, 113 Ga. App. 170, 147 S.E.2d 676 (1966).
If there is a causal relationship between claimant's original specific disability and a later general disability, claimant is entitled to compensation for total incapacity irrespective of the fact that the result of the injury at first amounted merely to a specific disability. Waters v. NABISCO, 113 Ga. App. 170, 147 S.E.2d 676 (1966).
Impairment of use of foot in addition to loss of toes as change in condition.
- When, at the time of award for loss of toes, it was impossible, because maximum improvement had not been reached, to determine the effect which the original injury had upon the employee's foot, and subsequent development in the employee's condition showed that as a result of the original injury there was an impairment in the use of the foot, the original award was subject to review upon the ground of a change in condition. General Accident, Fire & Life Assurance Corp. v. Beatty, 45 Ga. App. 104, 163 S.E. 302 (1932).
Change in condition and new accident distinguished.
- "New accident" may be caused by aggravation of a previous compensable injury by continued work, whereas a change of physical and economic condition results from a gradual deterioration stemming from the wear and tear of ordinary, nonemployment work, rather than from job-related activities. United States Fid. & Guar. Co. v. Reynolds, 146 Ga. App. 615, 247 S.E.2d 199 (1978).
When claimant sustains an injury and is awarded compensation during claimant's period of disability, then returns to normal life and claimant's employment, and performs claimant's normal duties or ordinary work, as a result of which, and not because of a specific job-related incident, claimant's condition gradually worsens to the point that claimant can no longer continue to perform claimant's ordinary work, this gradual worsening or deterioration is considered a change in claimant's condition and not a new accident. Central State Hosp. v. James, 147 Ga. App. 308, 248 S.E.2d 678 (1978).
"Change in condition" applies when claimant is injured, draws compensation, and thereafter returns to work, but as a result of performing normal duties, claimant's condition worsens to the point that claimant cannot continue claimant's employment; only when claimant goes back to work after injury, without any agreement or award as to that injury having been issued or approved by the board, will the "new accident" theory apply. Hartford Ins. Group v. Stewart, 147 Ga. App. 733, 250 S.E.2d 184 (1978).
When there is no actual new accident, ordinarily distinguishing feature that will characterize disability as either a "change of condition" or a "new accident" is the intervention of new circumstances. Certain v. United States Fid. & Guar. Co., 153 Ga. App. 571, 266 S.E.2d 263 (1980).
Claimant was properly awarded workers' compensation benefits because there was at least a scintilla of evidence to support a finding that the claimant suffered a new injury because the claimant's pre-existing condition was independently aggravated by work that was not normal and that the claimant had not suffered a change in condition. Evergreen Packaging, Inc. v. Prather, 318 Ga. App. 440, 734 S.E.2d 209 (2012).
Whether new accident or change of condition has occurred is a question of fact for the administrative law judge. United States Fid. & Guar. Co. v. Reynolds, 146 Ga. App. 615, 247 S.E.2d 199 (1978).
Whether an employee's inability to continue working has been caused by a new accident or a change in condition is a question of fact for the administrative law judge. Northbrook Property & Cas. Ins. Co. v. Babyak, 186 Ga. App. 339, 367 S.E.2d 567, writ of cert. vacated, 258 Ga. 484, 373 S.E.2d 21 (1988).
Wear and tear of ordinary life as "change in condition."
- Even if wear and tear of ordinary life or ordinary work to some extent aggravates a preexisting infirmity, when that infirmity itself, stemming from original trauma, continues to worsen, the point at which the employee is no longer able to continue the employee's work is not a new accident but is a change of physical and economic condition entitling claimant to compensation under the original award. St. Paul Fire & Marine Ins. Co. v. Hughes, 125 Ga. App. 328, 187 S.E.2d 551 (1972).
When claimant receives an injury and is paid compensation during the period of claimant's disability, then returns to work and performs the normal duties of claimant's employment for a period of time, and subsequently claimant's condition worsens as the result of performing claimant's usual duties and the wear and tear of ordinary life to the point that claimant is no longer able to perform the ordinary work of claimant's employment, claimant is considered to have had a change in condition, rather than a new accident. Central State Hosp. v. James, 147 Ga. App. 308, 248 S.E.2d 678 (1978).
When claimant received an injury, drew compensation, and then returned to work, and subsequently, due to normal wear and tear of performing claimant's ordinary duties, again became disabled, and there was no specific job related incident which would have constituted a new accident, claimant underwent a "change in condition" and did not sustain a new injury. Zurich Am. Ins. Cos. v. Sargent, 147 Ga. App. 672, 250 S.E.2d 11 (1978).
Subsequent total disability of claimant who changed employers after compensated injury was the result of gradual worsening of claimant's condition due to normal wear and tear of performing normal duties of employment, and was therefore a "change in condition" rendering the former employer liable for workers' compensation benefits, not a new injury which would place such liability upon claimant's last employer. Hartford Accident & Indem. Co. v. Troglin, 148 Ga. App. 715, 252 S.E.2d 213 (1979).
Second accident partially precipitating disability as new injury.
- When claimant sustains a second accident, as the result of a specific job related incident which aggravates a preexisting condition resulting from a prior accident, the second accident which aggravated the preexisting condition is considered a new injury if it at least partially precipitates claimant's disability, whether claimant is immediately disabled or continues to work after the second accident and claimant's condition gradually worsens until claimant is forced to cease employment. Central State Hosp. v. James, 147 Ga. App. 308, 248 S.E.2d 678 (1978).
New accident due to new circumstances with new employer.
- When claimant left the old employer and went to work in a different environment with a new employer, the activity performed for the new employer exceeding the limits of the light duty offered by the old employer, and the inability to continue to work occurred with the new employer, there were such "new" circumstances that it had to be concluded that there was a new accident as of the date of the inability to work. Certain v. United States Fid. & Guar. Co., 153 Ga. App. 571, 266 S.E.2d 263 (1980).
Running of statute on new accident.
- When claimant is injured on the job but continues to perform the duties of claimant's employment until claimant is forced to cease work because of the gradual worsening of claimant's condition, which is at least partly attributable to claimant's physical activity in continuing to work subsequent to claimant's injury, the one-year statute of limitation begins to run from the date claimant was forced to cease employment on the theory that the date of the "new accident" is the date that the disability manifests itself. Central State Hosp. v. James, 147 Ga. App. 308, 248 S.E.2d 678 (1978).
Limitation period for claim for same injury causing initial disability.
- When claimant received weekly income benefits for the period of claimant's disability, a claim filed by the claimant for the same injury which caused the claimant's disability was a claim for a change in condition, and not an initial claim, and the claim was therefore governed by the two-year limitations period of O.C.G.A. § 34-9-104(b). Clarke v. Samson Mfg. Co., 177 Ga. App. 149, 338 S.E.2d 738 (1985).
Additional injuries claim time barred by expiration of benefits.
- Change in condition analysis did not apply to a claim of additional injuries resulting from an original compensable injury when the injury occurred more than two years after the last payment of income benefits. J.M. Huber Corp. v. Holliday, 228 Ga. App. 4, 491 S.E.2d 74 (1997).
Burden on party claiming change in condition.
- Prime requisite of review under this section was that there be a change in the employee's physical condition between the time of the review and any award made by the board, and the burden of establishing this is upon the party claiming a change in condition. Fortson v. American Sur. Co., 92 Ga. App. 625, 89 S.E.2d 671 (1955).
When an award has been entered by the board in favor of the claimant and is still outstanding, that award is conclusive as to the disability of claimant and continuance thereof; and the burden of proof is on the employer to show a change in condition of claimant which would authorize the board to make a new award ending or diminishing compensation previously awarded. Hartford Accident & Indem. Co. v. Webb, 109 Ga. App. 667, 137 S.E.2d 362 (1964).
Burden on employer is to prove a change for the better as to all injuries received by the employee by reason of accident for which compensation was due. Gorman v. Employers Mut. Liab. Ins. Co., 113 Ga. App. 500, 148 S.E.2d 463 (1966).
Burden is on employer to show a change in physical condition. J.D. Jewell, Inc. v. Pirkle, 117 Ga. App. 745, 161 S.E.2d 920 (1968).
If an employer begins to make payments and continues over a period of time but then abruptly ceases those payments, the burden should not necessarily be on the employee to establish the employee's entire case, but instead, even though the employee might request the hearing, the employer should have the burden of showing a change in condition to justify cessation of the payments. On the other hand, if after beginning to make payments, the employer timely files a Form WC 2 and a Form WC 3, a "Notice to Controvert Payment of Compensation," then certainly there are good reasons to place the burden on the employee to establish the employee's claim since this is the initial hearing of the matter and not a change in condition. Cornell-Young v. Minter, 168 Ga. App. 325, 309 S.E.2d 159 (1983).
As the claimant's condition had never been established by award or otherwise prior to the hearing on the claim, the claimant had the burden of proof in the matter and the appellate division erred in shifting the burden to the employer at whatever point in time during the hearing the claimant established a work-related disability. Dan Vaden Chevrolet v. Mann, 234 Ga. App. 500, 506 S.E.2d 653 (1998).
When the record contained some evidence which supported the finding of the administrative law judge that the claimant failed to sustain the burden of establishing a change in condition, the superior court erred in substituting its own judgment and reversing the board's award. Georgia-Pacific Corp. v. Wilson, 240 Ga. App. 123, 522 S.E.2d 700 (1999).
Because an employee used the employee's leave benefits in lieu of receiving workers' compensation benefits (WCB) when the employee sustained a compensable injury but was unaware of the employee's entitlement to the WCB, the employee sustained an economic injury, and accordingly, the employee was entitled to an award of temporary total disability income benefits for the time that the employee was out; it was error to conclude that the employer's use of the employee's leave time constituted an "award" so that the burden of proving a subsequent change in condition was on the employee pursuant to O.C.G.A. § 34-9-104, as the employee did not contend that the employee's earning capacity was diminished. Glisson v. Rooms To Go, 270 Ga. App. 689, 608 S.E.2d 50 (2004).
Filing of Form WC-104.
- When an employer first reduced and then terminated an employee's temporary total disability benefits, the employer had to strictly comply with O.C.G.A. § 34-9-104(a)(2) and Ga. Bd. Workers' Comp. R. 104 by filing a Form WC-104 and a supporting medical opinion with the State Board of Workers' Compensation; a medical opinion issued before an administrative law judge's opinion establishing the employee's condition, pursuant to § 34-9-104(a)(1), did not satisfy this requirement, nor did a medical opinion issued before the employee underwent knee surgery, which clearly rendered the employee temporarily totally disabled, under § 34-9-104(a)(1). MARTA v. Bridges, 276 Ga. App. 220, 623 S.E.2d 1 (2005).
When an employer first reduced and then terminated an employee's temporary total disability benefits, the employer had to strictly comply with O.C.G.A. § 34-9-104(a)(2) and Ga. Bd. Workers' Comp. R. 104 by filing a Form WC-104 and a supporting medical opinion with the State Board of Workers' Compensation; the employer did not satisfy this burden by filing a Form WC-104 in the trial court because that could not supplement the record before the State Board of Workers' Compensation or an administrative law judge as the trial court was an appellate body in this case. MARTA v. Bridges, 276 Ga. App. 220, 623 S.E.2d 1 (2005).
Showing required when employee claims change.
- To establish a change of condition, as opposed to a new injury, it must be shown either that the condition has grown worse, or alternatively, that it has improved; that because of this change, claimant is unable to continue to work or conversely is able to work with a lesser degree of disability; that because of inability to work claimant suffers from partial or total loss of income or conversely that because inability to work has been lessened, claimant is fully or partially employable and the loss of income has been fully or partially alleviated; and lastly, if an inability to work persists, that such inability was proximately caused by a previous accidental injury. Wills v. St. Paul Fire & Marine Ins. Co., 143 Ga. App. 562, 239 S.E.2d 219 (1977).
In order to receive workers' compensation benefits based on a change in condition, a claimant must establish by a preponderance of the evidence that: first, the claimant suffered a loss of earning power as a result of a compensable work-related injury; second, that claimant continues to suffer physical limitations attributable to that injury; and, third, that claimant has made a diligent, but unsuccessful effort to secure suitable employment following termination. Maloney v. Gordon County Farms, 265 Ga. 825, 462 S.E.2d 606 (1995).
Claimant does not have to show why not hired by prospective employer.
- Once claimant has offered evidence in support of a claim for benefits because of a change in condition, the board may in its discretion draw reasonable inferences from that evidence that despite claimant's good faith efforts, claimant's inability to obtain employment was proximately caused by the continuing disability. This opinion reverses Gordon County Farms v. Maloney, 214 Ga. App. 253, 447 S.E.2d 623 (1994) and overrules Aden's Minit Market v. Landon, 202 Ga. App. 219, 413 S.E.2d 738 (1991) and Autolite v. Glaze, 211 Ga. App. 780, 440 S.E.2d 497 (1994) to the extent that these cases impose an additional burden on the claimant to prove the reasons why claimant was not hired by a prospective employer. Maloney v. Gordon County Farms, 265 Ga. 825, 462 S.E.2d 606 (1995).
Showing required when employer or insurer seeks change.
- To show a change of condition, an employer or insurer must show: (1) a physical change in claimant for the better; (2) ability to return to work because of the change; and (3) availability of work to decrease or terminate loss of income. Hercules, Inc. v. Adams, 143 Ga. App. 91, 237 S.E.2d 631 (1977); Commercial Union Ins. Co. v. Weeks, 155 Ga. App. 20, 270 S.E.2d 259 (1980).
Employer satisfied burden of showing an employee could work, even though the employer rejected the employee for a sedentary position after the employee failed a drug test. Freeman v. Continental Baking Co., 212 Ga. App. 855, 443 S.E.2d 520 (1994).
Burden not shifted by showing of unsuccessful work attempt.
- Fact that claimant attempted to work one day and was unable to continue is not such proof of claimant's recovery and ability to work as would throw the burden upon the claimant to show a change in condition thereafter. General Accident Fire & Life Assurance Corp. v. Teal, 100 Ga. App. 314, 111 S.E.2d 113 (1959).
Consideration of entire record by court.
- In reaching determination as to whether or not change of condition has occurred, court may consider the entire record. GMC, Chevrolet Div. v. Dempsey, 93 Ga. App. 423, 91 S.E.2d 850, aff'd, 212 Ga. 560, 93 S.E.2d 703 (1956).
Discovery of board error not change of condition.
- Discovery that board's finding of no insurance was erroneous did not constitute a "change of condition" within the meaning of O.C.G.A. § 34-9-104. Russell v. Fast Framers, Inc., 164 Ga. App. 771, 298 S.E.2d 303 (1982).
Effect of administrative law judge's analysis.
- Notation in the administrative law judge's award that a doctor could not state "to a reasonable degree of medical certainty" that claimant's medical condition was related to claimant's accident did not show an erroneous application of a heightened standard of proof since the finding was but one of several relied on for determining that claimant had not proven a causal relationship between the accident and claimant's condition. United Family Life Ins. Co. v. Sasser, 224 Ga. App. 871, 482 S.E.2d 491 (1997).
Evidence showing that claimant was not paid due benefits.
- When there is evidence to support a finding that a claimant was potentially due other income benefits at the time of the compensable injury and was not paid the benefits, then the limitations period in O.C.G.A. § 34-9-104(b) is inapplicable. Metropolitan Atlanta Rapid Transit Auth. v. Ledbetter, 184 Ga. App. 518, 361 S.E.2d 878, cert. denied, 184 Ga. App. 910, 361 S.E.2d 878 (1987).
Admissibility of testimony of doctors who examined claimant after original proceeding.
- In proceeding concerning change of claimant's condition, board's holding that testimony of two doctors who had not examined claimant at or before filing of original claim could not be considered was erroneous; this testimony was admissible. American Mut. Liab. Ins. Co. v. Grimes, 100 Ga. App. 51, 109 S.E.2d 837 (1959).
Evidence supported determination that permanent partial disability payments due employee had not been paid and, therefore, that the employee's claim for change of condition was not barred by the provisions of O.C.G.A. § 34-9-104(b). Holt's Bakery v. Hutchinson, 177 Ga. App. 154, 338 S.E.2d 742 (1985).
Employee's status, i.e., the employee's legal condition vis-a-vis the employee's employer, was first established when the employer began paying benefits voluntarily and last established when the last benefit payment was made in 2002; therefore, the employee's application for penalties for late benefits payments under O.C.G.A. § 34-9-221 made in 2010, eight years later, was governed by the change in condition statute of limitations, O.C.G.A. § 34-9-104(b), rather than the general statute of limitations, O.C.G.A. § 34-9-82. Metro. Atlanta Rapid Transit Auth. v. Reid, 295 Ga. 863, 763 S.E.2d 695 (2014).
Retroactive Effect
"Medical only" claims.
- O.C.G.A. § 34-9-104(b) applied to "medical only" claims if a compensable injury was established by an award; the workers' compensation board properly found that a worker suffered a change in condition for the worse rather than a new injury, and that an insurer was liable for the worker's income benefits because a prior "medical only" award found the worker's injury compensable. Footstar, Inc. v. Stevens, 275 Ga. App. 329, 620 S.E.2d 588 (2005), aff'd, 281 Ga. 448, 637 S.E.2d 692 (2006).
This section authorized the board to find a change of condition as of the time it actually occurred, even though it may result in a retroactive award. United States Fid. & Guar. Co. v. Kelley, 131 Ga. App. 6, 205 S.E.2d 38 (1974).
Award under this section may apply retroactively to the time that change of condition was found to have occurred. Foster v. Continental Cas. Co., 141 Ga. App. 415, 233 S.E.2d 492 (1977).
Meaning of "retroactive."
- Word "retroactive" in subsection (d) of this section meant that the change in condition might date to the actual date of the change as found, which would in some cases be found to have come before the application for hearing was made. Noles v. National Engine Rebuilding Co., 119 Ga. App. 833, 169 S.E.2d 185 (1969), aff'd, 227 Ga. 608, 182 S.E.2d 112 (1971).
Repayment of benefits.
- Administrative law judge was authorized to order repayment of benefits only dating back to the last award of benefits and could not require the worker to repay benefits received prior to that date. Aldrich v. City of Lumber City, 273 Ga. 461, 542 S.E.2d 102 (2001).
Subsection (b) of O.C.G.A. § 34-9-104 is prospective to the extent that it applies only to any action taken on or after its effective date but retrospective to the extent that it is applicable to pending cases in which the accident or injury occurred prior to its effective date. Hart v. Owens-Illinois, Inc., 161 Ga. App. 831, 289 S.E.2d 544 (1982).
Since subsection (b) of O.C.G.A. § 34-9-104 creates a substantive right, the 1978 amendment to subsection (b) (Ga. L. 1978, p. 2220, § 13), providing that a proceeding based on a change of condition may not be instituted more than two years after date of final payment of benefits, does not apply to a case when the claimant's injury occurred prior to July 1, 1978, the effective date of the amendment. Hart v. Owens-Illinois, Inc., 250 Ga. 397, 297 S.E.2d 462 (1982).
Two-year statute of limitations in subsection (b) of O.C.G.A. § 34-9-104 is not procedural and does not apply to injuries occurring before the 1978 effective date. Buckley v. Sears, Roebuck & Co., 165 Ga. App. 838, 299 S.E.2d 744 (1983).
For proceedings based on a change in condition when the claimant's injury occurred prior to July 1, 1978, the provisions of subsection (b) of O.C.G.A. § 34-9-104 as it appeared prior to the 1978 amendment (Ga. L. 1978, p. 2220, § 13) apply and bar the proceeding if instituted more than two years after notification of final payment was received by the Board of Workers' Compensation. Hart v. Owens-Illinois, Inc., 250 Ga. 397, 297 S.E.2d 462 (1982).
Two-year limitations period established in subsection (b) of O.C.G.A. § 34-9-104 was inapplicable to claimant whose original injury occurred prior to the effective date of the 1978 amendment to that section, and prior provision, under which limitations period began to run after the board was notified that final payment of claim had been made pursuant to a board order, was applicable. Coosa Baking Co. v. Thomas, 165 Ga. App. 313, 299 S.E.2d 145 (1983).
RESEARCH REFERENCES
Am. Jur. 2d.
- 82 Am. Jur. 2d, Workers' Compensation, § 574 et seq.
C.J.S.- 100 C.J.S., Workers' Compensation, § 573. 101 C.J.S., Workers' Compensation, §§ 1627 et seq., 1679.
ALR.
- Workmen's compensation: power or duty of commission to direct payment to another of balance remaining unpaid upon award at termination of right of person to whom it was originally made, 108 A.L.R. 158.
Workmen's compensation: character or status of right or claim within provision of act requiring or authorizing approval by the court or commission of settlement or compromise, 153 A.L.R. 285.
Retroactive application of statutes regarding enforcement of awards under Workmen's Compensation Acts, 155 A.L.R. 558.
Workmen's compensation: time and jurisdiction for review, reopening, modification, or reinstatement of award or agreement, 165 A.L.R. 9.
Workmen's compensation: crediting employer or insurance carrier with earnings of employee reemployed, or continued in employment, after injury, 175 A.L.R. 725; 84 A.L.R.2d 1108.
Workmen's compensation: crediting employer or insurance carrier with earnings of employee reemployed, or continued in employment, after injury, 84 A.L.R.2d 1108.
Workers' compensation: incarceration as terminating benefits, 54 A.L.R.4th 241.
Workers' compensation: reopening lump-sum compensation payment, 26 A.L.R.5th 127.