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 doc- 669 Change in Condition (Cont’d) tors 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. 34-9-104 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 noti- 670 34-9-104 WORKERS’ COMPENSATION fication 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 34-9-105 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).