Atlanta, GA (404) 885-1400

Albany, GA (229) 431-3036 

Brunswick, GA (912) 280-9662

Journal

  • Home
  • Blog
  • Boxed In? The Dilemma Employers And Insurers Face In Change In Condition Cases

Boxed In? The Dilemma Employers And Insurers Face In Change In Condition Cases

January 02, 2007 BY Def Admin

Is there a statute of limitations in change in condition claims where only permanent partial disability benefits (PPD), but no temporary total or temporary partial disability benefits have been paid?  It is well established that payment of permanent partial disability constitutes income benefits, which makes a claim compensable.  It is also understood that when a claimant receives permanent partial disability benefits and seeks additional income benefits, his future claim for additional indemnity is governed by the change in condition statute of limitations contained in O.C.G.A. § 34-9-104(b), which provides:

Any party may apply under this code section for another decision because of a change in condition … provided, further, that at the time of application, not more than two years have elapsed since the date the last payment of income benefits pursuant to O.C.G.A. § 34-9-261 or § 34-9-262 was actually made under this chapter ….

While the code section explicitly provides for a two-year statute of limitations when an injured employee previously received temporary total or temporary partial disability benefits, it does not specify when the statute of limitations should begin running in a change in condition claim where only permanent partial disability has been paid.  The statute’s silence on the issue of statute of limitations in change in condition cases where only PPD has been paid creates confusion and statutory misinterpretation and leads to injustices when employers and insurers are forced to defend these types of claims.  According to a plain reading of O.C.G.A. § 34-9-104(b), there is not a statute of limitations for change in condition claims where only PPD has been paid.  It is inconceivable that the legislature intended to create a situation in which there would be no statute of limitations preventing a claimant from seeking additional temporary total or temporary partial disability in change in condition claims.  The principles underlying the statute of limitations were designed to promote fair and equitable prosecution of claims and prevent the revival of stale claims when evidence has been lost, memories have faded, and witnesses have disappeared.  Moreover, there is a statute of limitations in virtually every other scenario, except in “payment of PPD only” cases.  There is a statute of limitations provision for temporary total, temporary partial, and medical benefits in all-issues cases under O.C.G.A. § 34-9-82(a).  There is a statute of limitations provision for additional temporary total and temporary partial disability benefits in change in condition claims under O.C.G.A. § 34-9-104(b).  There is even a statute of limitations provision in O.C.G.A. § 34-9-104(b) for additional permanent partial disability benefits in a change in condition case.  Logically, it seems that the legislature would not have intended to create statutes of limitations in every other scenario, but fail to create a statute of limitations for additional income benefits in a change in condition case where only PPD has been paid.

As a practical matter, if there were no statute of limitations in change in condition claims where only PPD has been paid, there would not be any closure or stopping point as to when a claimant could seek additional income benefits, which is a harsh consequence for employers and insurers.  Claimants could wait 10, 20, or 30 years, allege a change in condition, and despite the staleness of the claim and the unfairness to the employer/insurer to have to defend such a claim, receive an award of additional indemnity benefits with respect to a prior injury simply because the claimant received PPD benefits 20 years earlier.  Ultimately, employers/insurers are “boxed in” and have no recourse under this scenario if one follows only the plain language of O.C.G.A. § 34-9-104 (b). Employers and insurers should not have to arbitrarily commence TTD or TPD benefits, in addition to paying PPD, in order for the two-year statute of limitations to begin running.

Many claimants’ counsel and some administrative law judges have relied on Mechanical Maintenance, Inc., et al v Yarbrough, 264 Ga. App. 181 (2003) to argue that the two-year statute of limitations in O.C.G.A. § 34-9-104(b) does not bar a claimant from receiving additional income benefits when more than two years have elapsed since PPD was paid.  In the Yarbrough case, the Court of Appeals of Georgia distinguished between the “all issues” statute of limitations pursuant to O.C.G.A. §  34-9-82(a) and the “change in condition” statute of limitations under O.C.G.A. §  34-9-104(b).  The court noted that the term “weekly benefits” includes permanent partial disability benefits when referring to O.C.G.A. § 34-9-82(a), but not when referring to O.C.G.A. §  34-9-104(b). The court in Yarbrough indicated that “payment of permanent partial disability benefits has no bearing in these cases.”  Yarbrough at 184.  However, the Yarbrough case is distinguishable from the scenario of a change in condition claim where only PPD has been paid, since the employee in Yarbrough, at some point, received temporary total disability benefits before he received permanent partial disability benefits.  In change in condition claims where employers and insurers have never paid temporary total or temporary partial disability benefits, but have only paid PPD benefits, payment of PPD is the only logical reference point from which the statute of limitations can begin running.  In other words, when PPD benefits are the only income benefits paid in a change in condition claim, the change in condition two-year statute of limitations should begin running on the date the claimant last received PPD.  Construing the change in condition statute in this manner upholds the principles of fairness behind the statute of limitations doctrine and is the most reasonable interpretation of the legislature’s intent to create a statute of limitations in change in condition claims where only PPD has been paid. However, since Georgia case and statutory law (O.C.G.A. § 34-9-104(b)) do not specifically address a statute of limitations for change in condition cases where only PPD is paid, there likely will be an increasing amount of litigation on this issue.  Until the law and legislative intent are clear, employers and insurers must continue to rigorously defend these cases by extrapolating that the same two-year statute of limitations embodied in O.C.G.A. § 34-9-104(b) that applies in change in condition claims where temporary total and temporary partial disability benefits have been paid, should also apply in change in condition claims where only permanent partial disability benefits have been paid.

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley
(Editor-in-chief)