November 05, 2008 BY Matthew Walker
United Grocery Outlet V. Bennett: Clarifying The "Change In Condition" Statute Of Limitations
The “change in condition” statute of limitations contained in O.C.G.A. § 34-9-104(b) has historically been one of the more confusing provisions of Georgia’s Workers’ Compensation Act. And when it comes to the law, confusion breeds litigation. The Georgia Court of Appeals recently took another step towards clarifying this provision in United Grocery Outlet v. Bennett.
O.C.G.A. § 34-9-104(b) applies to claims where income benefits have already been paid. The statute of limitations contained in O.C.G.A. § 34-9-104(b) may bar a claim for additional income benefits which is based on a claimant’s alleged “change in condition” for the worse.
Much of the confusion associated with O.C.G.A. § 34-9-104(b) arises from the Georgia legislature’s revisions of the statute over the years. For instance, under the version of the statute in effect prior to July 1, 1978, the statute of limitations barred “change in condition” claims filed more than two years after “the date the board is notified that final payment of a claim has been made….” According to the Court of Appeals, this meant that the two year statute of limitations for additional income benefits began running when the State Board of Workers’ Compensation was actually notified that a “final payment” of income or medical benefits had been made.
For injuries occurring from July 1, 1978 through June 30, 1990, a request for additional income benefits based on a “change of condition” for the worse was allowed only if “not more than two years have elapsed since the date of final payment of income benefits due.” In other words, the statute of limitations’ “triggering mechanism” was changed from Board notification of a final benefit payment to the final payment ofall income benefits “due” to the claimant, including temporary total (TTD), temporary partial (TPD), or permanent partial (PPD) benefits. This change spawned a glut of litigation as to whether a claimant was “due” any unpaid benefits at the time of the “change in condition” application. Eventually, the Georgia Court of Appeals held that the two-year statute of limitations was tolled for every claim where previous benefits were “potentially due” and unpaid to the claimant. See, e.g., Holt’s Bakery v. Hutchinson, 177 Ga. App. 154 (1985).
Effective July 1, 1990, the legislature amended O.C.G.A. § 34-9-104 to provide that a request for additional TTD or TPD benefits must be made within two years of the last date that the payment of TTD or TPD benefits was “actually made.” Additionally, the statute provides that a request for additional PPD benefits must be made within four years of the last date that the payment of TTD or TPD benefits was “actually made.” In making this change, the legislature established a more specific and easily identifiable triggering mechanism for the statute of limitations.
In United Grocery Outlet v. Bennett, the injury at issue was governed by the post-July 1, 1990 version of O.C.G.A. § 34-9-104(b). Bennett had been injured while working for United Grocery Outlet, and had received TTD benefits. Over two years after the last actual payment of TTD, Bennett requested additional TTD benefits based on a “change in condition for the worse.” United Grocery argued this request was barred by O.C.G.A § 34-9-104(b). Bennett, on the other hand, argued that the statute of limitations was tolled by United Grocery’s failure to serve her with “various Board forms.” Alternatively, Bennett argued that United Grocery’s failure to serve her with notice that her TTD benefits had been suspended constituted a due process violation, and her claim therefore “should not be subject to the two-year limitation period.” At the trial level, the administrative law judge determined Bennett’s “change in condition” claim was barred by O.C.G.A. § 34-9-104(b). The superior court judge disagreed, and held that United Grocery’s failure to provide Bennett with the proper Board forms tolled the two-year statute of limitations.
In reviewing the Superior Court’s ruling, the Court of Appeals first recounted the legislative changes made in 1978 and 1990. Thereafter, the court noted that “when a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it….” The court further noted the Georgia legislature’s “very clear language” in deciding that the statute of limitations would be triggered by the last payment of TTD (or TPD) benefits. The Court of Appeals also observed that there is no statutory provision tolling the limitation period based on the employer/insurer’s failure to properly file or serve Board forms. Importantly, the court stated that an employer/insurer’s failure to comply with the rules for the filing and serving of Board forms may subject them to civil penalties, and, in the Bennett case, such penalties had been assessed. However, the Worker’s Compensation Act does not create an additional penalty by allowing for the tolling of the statute of limitations.
As to Bennett’s claim that her due process rights had been violated, the court recognized that Bennett did not receive additional TTD payments once her benefits were suspended (obviously). Therefore, the court found she had “actual knowledge” of the date of the last TTD payment, and that knowledge was sufficient to alleviate any due process concerns. Accordingly, the Court of Appeals reversed the superior court’s decision and denied Bennett’s claim for additional income benefits.
One important purpose of any statute of limitations is to avoid the imposition of liability for an indefinite period of time. In light of the many exceptions and the liberal construction of the pre-1990 versions of O.C.G.A. §34-9-104, however, the “change in condition” statute of limitations failed to provide a clear answer as to when an employer/insurer’s potential liability for additional income benefits would cease. The Georgia legislature’s July 1, 1990 revision of O.C.G.A. § 34-9-104 removed much of the confusion regarding the “change in condition” statute of limitations. Nonetheless, litigation continues over the meaning of that statute, and attorneys continue to propound arguments that the statute of limitations should be “tolled” or ruled inapplicable given the facts of a particular case. Although there is apparently no stopping such litigation, the Court of Appeals’ decision in United Grocery Outlet v. Bennett is in accordance with the legislature’s intention to create a level of certainty in an area of the law that was previously unclear.
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.
H. Michael Bagley