The recent decision reached by the Georgia Supreme Court in the case of Marta v. Reid greatly helped in interpreting and providing guidance in the application of the two year statute of limitations pursuant to O.C.G.A. § 34-9-104(b). However, yet another challenge to the two year statute of limitations under O.C.G.A. § 34-9-104(b) has been brought before the State Board of Workers’ Compensation.
The recent decision reached by the Georgia Supreme Court in the case of Marta v. Reid greatly helped in interpreting and providing guidance in the application of the two year statute of limitations pursuant to O.C.G.A. § 34-9-104(b). However, yet another challenge to the two year statute of limitations under O.C.G.A. § 34-9-104(b) has been brought before the State Board of Workers’ Compensation. Before looking at the particular facts of this most recent case, it may be helpful to review the Marta v. Reid case. In Marta, the Georgia Supreme Court held the claimant’s application for late payment penalties was time barred unless it was made within two years of the date of the last payment of indemnity benefits. Metropolitan Atlanta Rapid Transit Authority v. Reid, 295 GA 963, 763 S.E.2d 695 (2014).
In Marta, the claimant argued he had the right to pursue statutory late penalties – even though it had been over eight years since he last received indemnity benefits – because he had filed his initial claim within the one year statute of limitations pursuant to O.C.G.A. § 34-9-82. The employer, on the other hand, argued that the suspension of indemnity benefits and the claimant’s return to work was a “change in condition” and, thus, the two year statute of limitations found in O.C.G.A. § 34-9-104(b) applied. The Georgia Supreme Court agreed with the employer and held that, indeed, the O.C.G.A. § 34-9-104(b) “change in condition” statute of limitations applied because the actual suspension of indemnity payments is considered a change of the employee’s status.
It would seem the Marta decision addressed the proper application of O.C.G.A. § 34-9-104(b) and would put to rest any lingering questions as to whether the two year statute of limitations contained in O.C.G.A. § 34-9-104(b) bars claims for additional indemnity benefits made more than two years after the last date the claimant received indemnity benefits. Nevertheless, a recent claim was filed with the State Board of Workers’ Compensation in which the claimant sought catastrophic designation and temporary total disability (TTD) benefits. The problem with the claim is that it was filed two years after the claimant last actually received indemnity benefits.
In this most recent case before the State Board of Workers’ Compensation, a hearing was requested by the claimant on January 26, 2015 and, again, on April 1, 2015 seeking, among other things, TTD benefits from September 7, 2005 and TTD benefits from May 23, 2012, respectively. The claimant also filed a request for catastrophic designation on April 21, 2015. In turn, the employer filed a motion to dismiss the claimant’s request for TTD benefits.
There are several dates and events that are not in dispute. Income benefits were suspended on May 23, 2012. A WC-2 was filed with the Board on May 29, 2012 with regard to that suspension. The employee also testified in her deposition that she had not received income benefits since May of 2012. Additionally, a consent order was filed on February 8, 2013 which resolved issues with regard to PPD payments. This consent order also included a statement that the three hundred fifty week cap ran and that income benefits were suspended on May 23, 2012 pursuant to a State Board form WC-2 dated May 29, 2012.
The employer argued that the first request for hearing filed with the State Board of Workers’ Compensation on January 26, 2015 was not timely since it was filed more than two years after the last TTD payment was actually made on May 23, 2012. However, the employee contended that, as a result of a prior Award granting a change of physician and income benefits, the employer lost the right to “benefit” from the 350 week cap and that the suspension of benefits after 350 weeks was improper and invalid. The claimant went on to argue that the four hundred week cap on benefits should apply. In this matter, the four hundred week cap would have run on May 14, 2015, which would have made her hearing request timely filed within the O.C.G.A. §34-9-104(b) two year statute of limitations.
The State Board of Workers’ Compensation never addressed whether the suspension of the claimant’s benefits was flawed or otherwise invalid. Instead, citing the Marta decision, the Trial Division of the State Board of Workers’ Compensation held that O.C.G.A. §34-9-104(b) provides that an employee has two years from the last date income benefits are “actually paid” to request a hearing and found that, because the claimant filed her first hearing request over two years from the date of her last check for income benefits, her hearing request was not timely filed. As a result, the Trial Division granted the employer’s motion to dismiss the employee’s claim for additional indemnity benefits.
Not to be dissuaded, the claimant appealed the Trial Court’s decision to the Appellate Division of the State Board of Workers’ Compensation. After a review of the record as a whole, the Appellate Division affirmed the Trial Division’s Order and held that the employee’s claim for further indemnity benefits was indeed time-barred, thus confirming, once again, the proper application of §34-9-104(b).
Suffice to say, there may be more challenges regarding the application of O.C.G.A. §34-9-104(b). However, if the Board’s recent interpretation and application of O.C.G.A. §34-9-104(b) is any indication, it bodes well for employers and insurers that it will continue to strictly construe and apply the two year statute of limitation and that the actual date of suspension of benefits, regardless of any other factors or peripheral arguments, will control whether a claim is time barred or not.