October 18, 2016 BY Taylor Poncz
O.C.G.A. 34-9-82 and the Potential for Waiver of the Statute of Limitations Defense
As a matter of practice, one of the first things an adjuster or defense counsel should do when receiving a file is to check to see whether a WC-14 notice of claim or hearing request has been filed, and if so, the date of the filing of the form. Why? Because one of the most fundamental aspects of bringing a workers’ compensation claim in Georgia is that it has to be done in a timely manner. The policy behind this filing deadline being that the employer will have some definiteness to its expectations for when claims may be filed for purposes of evidence and discovery.
States differ as to the time period it will allow for an employee to file a claim. O.C.G.A. 34-9-82 sets out the all issues statute of limitations in Georgia, and it provides the general rule that a claim for workers’ compensation benefits must be filed within one year of the date of the accident (or one year from the date of death when seeking death benefits), or the right to compensation is barred. There are two exceptions to this rule and the first is when weekly benefits have been paid to or on behalf of the claimant, and the second is when remedial treatment has been furnished by the employer. In the event that weekly benefits have been paid, the employee has two years after the date of the last payment of weekly benefits to file a claim. In Georgia, the payment of salary in lieu of weekly benefits would suffice to trigger this exception. The second exception is when remedial treatment has been furnished by the employer on account of the injury, and in that event, the claim may be filed within one year after the date of the last remedial treatment furnished by the employer.
Otherwise, the statute of limitations will be strictly enforced because an Administrative Law Judge has no authority to disregard a valid statute of limitations defense. But what about the employer and the insurance carrier? Can their actions ever waive the right to apply this otherwise pretty solid defense?
The answer to that question is yes. In Brown Transport Corp. v. James, 243 Ga. 701 (1979), the Supreme Court of Georgia affirmed the Court of Appeals’ finding that an employer/insurer could waive the right to assert its one year statute of limitations defense. In that case, the Court found that representations and assurances that an injured worker would be “taken care of” by the company or its insurance carrier was sufficient to estop the company or carrier from asserting the defense. In support of the application of the principal of estoppel, the Brown court quoted Cotton States Ins. Co. v. Studdard, 126 Ga. App. 217 (1972), which provided that the employer/insurer’s conduct could create an estoppel barring the assertion of the statute of limitations defense if the effect of the employer/insurer’s conduct was to mislead or deceive the claimant, noting that it was irrelevant whether the conduct was intentional or not, and caused the claimant to withhold or postpone filing his claim until after the one year deadline had elapsed.
However, the Brown court was not the first to address this issue and in fact, there are several Court of Appeals cases in Georgia that have held that statements of assurance to the employee do not amount to conduct which would warrant the application of estoppel. In one of those cases for example, Day v. Bituminous Casualty Corp., 141 Ga. App. 555 (1977), the Court of Appeals found that a statement made by an employee of the insurer that claimant could visit the doctor again, that her claim would be reopened, and that her medical expenses would be paid, did not constitute an intentional act of concealment or misrepresentation which would deter claimant from filing a claim. The Court of Appeals reached the same conclusion in other prior cases when an employee was assured that medical bills would be paid and/or that the employee would be “taken care of.” The basis for the Court’s ruling in these cases was essentially that the assurances made to the employee did not rise to the level of fraud that would toll the statute for filing a claim.
The Brown court disagreed and disapproved of those cases, finding instead that “where an employee relies on the statements of his employer or the insurance carrier, who are in a position of authority, that he will be taken care of, that all is well and he needn’t worry, it is going too far the to allow them to raise as a bar to his claim the employee’s failure to file within one year.” Notwithstanding those cases the Brown court disapproved, it specifically approved consistent prior decisions in Employers Insur. of Wausau v. Nolen, 137 Ga. App. 205 (1976) and Cotton States Insur. Co. v. Studdard, 126 Ga. App. 217 (1972), which both upheld the decision estopping the employer/insurer from asserting the statute of limitations defense. In Nolen, the carrier sent claimant checks and told him he would be entitled to additional benefits. The adjuster then induced claimant to take his time filing a notice of claim by causing him to believe that a different form claimant had already filled out would sufficiently toll the statute of limitations. The Court found that the insurer had admitted liability and these actions estopped the carrier from asserting the statute of limitations defense. In Studdard, the court found the employer had waived the defense when the claim was filed 6 days after the expiration of the deadline because the delay was procured by the carrier’s insurance agent’s representations that payment would be made once total medical bills were ascertained, and the agent’s directions to the claimant not to file a claim. When the carrier did not pick up the claim, it informed claimant that she could either accept a settlement or get nothing because the statute of limitations had run, and this, the Court of Appeals found, was improper because the claimant was induced by the representations of payment made by the carrier’s agent in not filing her claim sooner.
Subsequent decisions since the Brown case mimic the application and consideration for whether the representations made by the employer/insurer induced the claimant to act, or in most instances, not act. In D.W. Adcock, M.D., P.C. v. Adcock, 257 Ga. App. 700 (2002), the Court of Appeals applied estoppel to prevent the claim from being barred by the statute of limitations. There, the claimant sought benefits from the employer’s new carrier, but was denied on the false ground that the date of the injury did not fall within the period of coverage. The insurance carrier forwarded the claim to the employer’s previous provider and notified the claimant in a denial letter that the previous carrier would contact him shortly to resolve the matter. When the claim was denied by the prior carrier, the Court of Appeals affirmed the lower court’s decision that the new carrier could not refuse to pay the claim, although it had not been filed with the Board within a year of the date of injury, because the insurance carrier’s conduct mislead the claimant and induced him to postpone filing his claim.
The facts contrast, but the application was the same, in Joyce v. Paul Hayes Amoco Serv. Station, 161 Ga. App. 373 (1982), where the court refused to apply estoppel when an employer told the claimant’s wife that he did not have workers’ compensation coverage and would not pay for medical bills, because the court found that the employer made no promises and that his statements did not prevent the claimant from filing a claim.
What we can gather from these cases is that a statute of limitations defense will be impermeable and will bar a claimant’s right to compensation, but an employer/insurer, under certain circumstances, can waive this defense. However, the standard for effectuating the waiver is fairly high. Not only must be the employer/insurer’s representations be misleading, but it must also prevent the employee from meeting the statutory deadline. While rare in practice, the concept of waiver is an important one that both employers and adjusters should be cognizant of especially when handling a potentially questionable claim.
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