Ayers v

Rembert, 241 Ga. 810 34-9-221 WORKERS’ COMPENSATION App. 698, 527 S.E.2d 290 (1999). Noncompliance as issue of fact. — Whether noncompliance with O.C.G.A. § 34-9-221 is without reasonable grounds is an issue of fact to be determined by the board, and its decision will be affirmed by the appellate court if there is any evidence to support it. Carr v. A.P. & Harry Jones Logging, 198 Ga. App. 698, 402 S.E.2d 538 (1991). Cessation of payments by self-insurer. — When a self-insurer temporarily ceased benefits payments, but notified the board and the Insurance Commissioner, and when there was no evidence in the claimant’s record authorizing a finding of willfulness or the imposition of a civil penalty, there was no error of fact or of law made by the administrative law judge or the board in failing to assess a civil penalty or to award attorney’s fees. Grier v. Proctor, 195 Ga. App. 116, 393 S.E.2d 18 (1990). Conclusiveness of award. — When an award has been entered by the board in favor of the claimant and is still outstanding, the award is conclusive as to the disability of the claimant and the continuance thereof, and the burden of proof is on the employer to show a change in condition of the claimant which would authorize the board to make a new award ending or diminishing the compensation previously awarded. Hartford Accident & Indem. Co. v. Webb, 109 Ga. App. 667, 137 S.E.2d 362 (1964). Agreement to pay compensation approved by the board amounts to an award for compensation in terms of the agreement. Taylor v. Sunnyland Packing Co., 112 Ga. App. 544, 145 S.E.2d 587 (1965). Compensation agreement precludes later contradiction. — Compensation agreement precludes either party from later contesting or contradicting facts admitted to exist as of the time of the agreement. Continental Cas. Co. v. Donnell, 112 Ga. App. 274, 145 S.E.2d 89 (1965). Effect of agreement. — Agreement executed by the parties and approved by the board possesses all of the force of an award of compensation. Continental Cas. Co. v. Bump, 218 Ga. 187, 126 S.E.2d 783 (1962). 34-9-221 Agreement conclusive from date of execution. — Conclusiveness established by an agreement filed with and approved by the board that an employee has suffered an injury compensable under the terms of the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.) dates from the moment of the execution of the agreement. Bump v. Continental Cas. Co., 109 Ga. App. 228, 136 S.E.2d 14 (1964). Contesting act’s applicability after initial acceptance of benefits. — Initial acceptance of voluntarily paid benefits should not preclude the injured employee from contesting, in a timely manner, the applicability of the act to the incident in question. This does not permit a double recovery since, if the employee recovers at common law, the defendant employer would be entitled either to a set-off for benefits erroneously paid under the Workers’ Compensation Act, O.C.G.A. § 34-9-1 et seq., or to present evidence of benefits collected by the employee as provided by O.C.G.A. § 51-12-1(b). Associated Hosts of Ga., Inc. v. Marley, 184 Ga. App. 352, 361 S.E.2d 496 (1987). Notice to controvert invalid. — Appellate Division of the State Board of Workers’ Compensation did not err in holding that the employer’s notice to controvert was invalid on the ground that the employer had not paid an employee all the benefits the employee was due before filing the notice because the employer had two options to withhold benefits, either by deciding quickly not to pay benefits at all and filing the employer’s notice to controvert within 21 days after the employer learned about the claim, or by paying benefits initially and filing the employer’s notice to controvert within 60 days after payments were first due; either way, the Workers’ Compensation Act, O.C.G.A. § 34-9-221, provides a mechanism for a relatively speedy resolution of the employer’s unilateral decision to withhold benefits from the employee, and if the employer does not comply with the statutory requirements for terminating benefits, then the employer must bear the consequences. Crossmark, Inc. v. Strickland, 310 Ga. App. 303, 713 S.E.2d 430 (2011). Ability of employer/insurer to controvert liability. — By enacting 811 General Consideration (Cont’d) O.C.G.A. § 34-9-221(d), the legislature has provided a means by which an employer/insurer can controvert compensability prior to paying any benefits. Goode Bros. Poultry Co. v. Kin, 201 Ga. App. 557, 411 S.E.2d 724, cert. denied, 201 Ga. App. 903, 411 S.E.2d 724 (1991). Adverse ruling against an employer on its suspension of an employee’s benefits did not invalidate its notice to controvert based on newly discovered evidence. Cumberland Distrib. Servs., Inc. v. Fuson, 228 Ga. App. 380, 492 S.E.2d 2 (1997). Although an employer’s failure to have paid a statutory penalty under O.C.G.A. § 34-9-221(e) rendered its notice to controvert invalid under § 34-9-221(h), such that it was barred from contesting the issue of a compensable injury of an employee who was receiving temporary total disability benefits, such invalid notice did not bar the employer from asserting that the employee had a change in condition under § 34-9-221(i) that warranted discontinuation of the benefits. Fallin v. Merritt Maint. & Welding, Inc., 283 Ga. App. 485, 642 S.E.2d 122 (2007). Employer not estopped from controverting liability. — Fact that an employer provided medical treatments and disability benefits for the temporary aggravation of a worker’s preexisting condition did not mean that it accepted the compensability of the preexisting condition, and the employer was not estopped from contesting the compensability of any subsequent disability arising from such condition. Chem Lawn Servs. v. Stephens, 220 Ga. App. 239, 469 S.E.2d 375 (1996). Employer was not precluded from presenting a defense to an employee’s claim for benefits by the employer’s failure to make benefit payments to the employee before filing a notice to controvert that was late. Stephenson v. Roper Pump Co., 261 Ga. App. 131, 581 S.E.2d 741 (2003). Cited in General Accident, Fire & Life Assurance Corp. v. Beatty, 174 Ga. 314, 162 S.E. 668 (1932); Rourke v. U.S. Fid. & Guar. Co., 187 Ga. 636, 1 S.E.2d 728 (1939); Tillman v. Moody, 181 Ga. 530, 182 S.E. 906 (1935); Lumbermen’s Mut. Cas. Co. v. Cook, 195 Ga. 397, 24 S.E.2d 309 34-9-221 (1943); Maryland Cas. Co. v. Stephens, 76 Ga. App. 723, 47 S.E.2d 108 (1948); New Amsterdam Cas. Co. v. Brown, 81 Ga. App. 790, 60 S.E.2d 245 (1950); Georgia Marine Salvage Co. v. Merritt, 82 Ga. App. 111, 60 S.E.2d 419 (1950); National Sur. Corp. v. Nelson, 99 Ga. App. 95, 107 S.E.2d 718 (1959); Sears, Roebuck & Co. v. Wilson, 215 Ga. 746, 113 S.E.2d 611 (1960); Firth v. Liberty Mut. Ins. Co., 107 Ga. App. 285, 129 S.E.2d 812 (1963); Fidelity & Cas. Co. v. Parham, 218 Ga. 640, 129 S.E.2d 868 (1963); GMC v. Harrison, 107 Ga. App. 667, 131 S.E.2d 234 (1963); Guess v. Liberty Mut. Ins. Co., 219 Ga. 581, 134 S.E.2d 783 (1964); Awbrey v. Davis, 219 Ga. 598, 134 S.E.2d 785 (1964); Proctor v. Dixie Bell Mills, Inc., 113 Ga. App. 787, 149 S.E.2d 550 (1966); Simpson v. Travelers Ins. Co., 117 Ga. App. 43, 159 S.E.2d 294 (1967); Martin v. GMC, Fisher Body Div., 224 Ga. 677, 164 S.E.2d 107 (1968); Atlanta Coca Cola Bottling Co. v. Gates, 225 Ga. 824, 171 S.E.2d 723 (1969); Fireman’s Fund Ins. Co. v. Crowder, 123 Ga. App. 469, 181 S.E.2d 530 (1971); Harris v. Atlanta Coca-Cola Bottling Co., 128 Ga. App. 193, 196 S.E.2d 159 (1973); Spengler v. Employers Com. Union Ins. Co., 131 Ga. App. 443, 206 S.E.2d 693 (1974); Tuck v. Fidelity & Cas. Co., 131 Ga. App. 807, 207 S.E.2d 210 (1974); GMC v. Dover, 239 Ga. 611, 238 S.E.2d 403 (1977); Insurance Co. of N. Am. v. Henson, 150 Ga. App. 788, 258 S.E.2d 706 (1979); Haygood v. Home Transp. Co., 244 Ga. 165, 259 S.E.2d 429 (1979); Commercial Union Assurance Co. v. R.C. Van Lines, 156 Ga. App. 420, 274 S.E.2d 781 (1980); Liberty Mut. Ins. Co. v. Kirkland, 156 Ga. App. 576, 275 S.E.2d 152 (1980); Sunbelt Airlines v. Hunt, 158 Ga. App. 429, 280 S.E.2d 435 (1981); Binswanger Glass Co. v. Brooks, 160 Ga. App. 701, 288 S.E.2d 61 (1981); Seitzingers, Inc. v. Barnes, 161 Ga. App. 855, 289 S.E.2d 315 (1982); Kelley v. West Point Pepperell, Inc., 164 Ga. App. 187, 296 S.E.2d 191 (1982); Carroll v. Dan River Mills, Inc., 169 Ga. App. 558, 313 S.E.2d 741 (1984); J & M Transp. Co. v. Crowe, 173 Ga. App. 13, 325 S.E.2d 412 (1984); State v. Mitchell, 177 Ga. App. 333, 339 S.E.2d 384 (1985); Calwell v. Perry, 179 Ga. App. 682, 347 S.E.2d 286 (1986); Georgia Ins. Co. v. Brown, 179 Ga. App. 812 34-9-221 WORKERS’ COMPENSATION 687, 347 S.E.2d 290 (1986); Hardee’s v. Bailey, 180 Ga. App. 332, 349 S.E.2d 211 (1986); State v. Graul, 181 Ga. App. 573, 353 S.E.2d 70 (1987); Owen of Ga., Inc. v. Waugaman, 185 Ga. App. 827, 366 S.E.2d 173 (1988); McGinty v. Alfred L. Simpson & Co., 188 Ga. App. 718, 374 S.E.2d 217 (1988); Raley v. Lanco Paint & Drywall, 190 Ga. App. 462, 379 S.E.2d 196 (1989); Cypress Ins. Co. v. Duncan, 281 Ga. App. 469, 636 S.E.2d 159 (2006); Lane v. Williams Plant Servs., 330 Ga. App. 416, 766 S.E.2d 482 (2014). Practice and Procedure Untimely notice did not preclude denial of responsibility for medical services. — Employer’s failure to timely file a notice to controvert did not preclude it from denying responsibility for medical services from a physician not on the posted panel, when the employer had no reason to assume that claimant was seeking workers’ compensation medical, rather than income, benefits. ITT-Continental Baking Co. v. Powell, 182 Ga. App. 533, 356 S.E.2d 267 (1987). Belief of no liability to employee was insufficient for failure to give notice to controvert the claim. — Believing that it was not liable to the employee was an insufficient reason for the motor common carrier to fail to file a notice to controvert the claim, as required by O.C.G.A. § 34-9-221(d). There was no specificity in the statute concerning the grounds on which the right to compensation was controverted. C. Brown Trucking, Inc. v. Rushing, 265 Ga. App. 676, 595 S.E.2d 346 (2004). Failure to timely file a notice to controvert does not estop the employer from defending against a claim. American Int’l Adjusting Co. v. Davis, 202 Ga. App. 276, 414 S.E.2d 292 (1991). Scope of board’s authority. — Board is not bound to merely determine whether or not employer properly controverted claim for sole ground listed in notice to controvert but may determine all issues within the bounds of its rules and regulations and the law. Southern Bell Tel. & Tel. Co. v. Hodges, 164 Ga. App. 757, 298 S.E.2d 570 (1982). 34-9-221 Violation of statute not basis to toll statute of limitations. — Claimant’s request for reinstatement of temporary total disability benefits based on a change in condition was time-barred under O.C.G.A. § 34-9-104(b)’s two-year limitation period because the fact that the employer failed to serve the claimant with various forms, in violation of O.C.G.A. § 34-9-221(c), was not grounds for extending the statute of limitations. United Grocery Outlet v. Bennett, 292 Ga. App. 363, 665 S.E.2d 27 (2008), cert. denied, 2008 Ga. LEXIS 939 (Ga. 2008). O.C.G.A. § 34-9-221(d) does not create nor constitute a statute of limitation foreclosing an employer’s defense upon an employer’s failure to file notice to controvert within 21 days of the date of an accident. Linder v. Alterman Foods, Inc., 162 Ga. App. 786, 292 S.E.2d 900 (1982). Limitations period for controverting liability. — O.C.G.A. § 34-9-221(h) creates a 60-day statute of limitation on an employer’s ability to controvert liability as to any injury for which benefits have already been voluntarily held, except upon grounds of change in condition or newly discovered evidence. Carpet Transp., Inc. v. Pittman, 187 Ga. App. 463, 370 S.E.2d 651 (1988). O.C.G.A. § 34-9-221(h) did not prohibit the employer from contesting the correct amount of compensation more than 60 days from the due date of the first payment. Leon Dawson/Crawford Forest Prods. v. Walker, 192 Ga. App. 887, 386 S.E.2d 690 (1989). O.C.G.A. § 34-9-221(h) did not apply to a dispute between two insurers as to which was liable for workers’ compensation, when the employee’s right to compensation was not being challenged by any of the parties. Columbus Intermediate Care Home, Inc. v. Johnston, 196 Ga. App. 516, 396 S.E.2d 268 (1990). When employer bound itself to payment of compensation benefits without an award, an intervening Georgia Supreme Court holding that an employer is not obligated to pay workers’ compensation benefits to an injured worker who misrepresented the worker’s physical condition at the time the worker was hired did not exclude the employer from compliance 813 Practice and Procedure (Cont’d) with the statute of limitations contained in subsection (h) of O.C.G.A. § 34-9-221. Snapper Power Equip. Co. v. Crook, 206 Ga. App. 373, 425 S.E.2d 393 (1992). O.C.G.A. § 34-9-221(h) creates a 60-day statute of limitation on an employer’s ability to controvert employee’s right to compensation itself. Floyd S. Pike Elec. Contractors v. Williams, 207 Ga. App. 86, 427 S.E.2d 67 (1993). O.C.G.A. § 34-9-221(i) requires 10-days’ notice before suspension of benefits. It matters not when the employer/insurer was entitled to suspend benefits. The claimant is entitled to benefits for 10 days following the filing of such notice. Jackson v. Peachtree Hous. Div., 187 Ga. App. 612, 371 S.E.2d 112, cert. denied, 187 Ga. App. 907, 370 S.E.2d 194 (1988). Computing the 20-day mandate of subsection (f ). — General computation of time provision of O.C.G.A. § 1-3-1(d)(3) is the starting point for computing the 20-day mandate of O.C.G.A. § 34-9-221(f ). Liberty Nat’l Life Ins. Co. v. Coley, 201 Ga. App. 623, 411 S.E.2d 553, cert. denied, 201 Ga. App. 904, 411 S.E.2d 553 (1991). When the twentieth day for payment under O.C.G.A. § 34-9-221(f ) was Christmas Day, receipt of checks by claimant’s attorney on December 26 constituted payment within the contemplation of subsection (f ). Liberty Nat’l Life Ins. Co. v. Coley, 201 Ga. App. 623, 411 S.E.2d 553, cert. denied, 201 Ga. App. 904, 411 S.E.2d 553 (1991). Requiring the payor of negotiable instruments to calculate into the 20-day payment period under O.C.G.A. § 34-9-221(f ) such factors as weather prognoses, banking hours and regulations, and the claimant’s or attorney’s cooperation in negotiating the instruments within the allocated time frame, would defy reason and equity and effectively shorten the period the statute specifies. Liberty Nat’l Life Ins. Co. v. Coley, 201 Ga. App. 623, 411 S.E.2d 553, cert. denied, 201 Ga. App. 904, 411 S.E.2d 553 (1991). Mailing of benefits on twentieth day insufficient. — Plain language of O.C.G.A. § 34-9-221(f ) and Rule 221(a) 34-9-221 and (f ) of the Rules and Regulations of the State Board of Workers’ Compensation mandates that payment of benefits be received by a claimant within 20 days of an award. Mailing of benefits by the 20th day is insufficient. Dykes v. Superior Elec. Contractors, 179 Ga. App. 793, 348 S.E.2d 120 (1986). Employer filing notice of appeal after 20th day. — Filing of a notice of appeal by the employer after the 20th day but within 30 days following the issuance of an award does not constitute an automatic supersedeas but leaves the employee free to collect the amount of the award, as well as the 20 percent penalty, at the employee’s peril. McLean Trucking Co. v. Florence, 179 Ga. App. 514, 347 S.E.2d 333 (1986); Cox Enters., Inc. v. Marshall, 190 Ga. App. 322, 378 S.E.2d 725 (1989). Notice to controvert filed 26 days after injury untimely. — When there was evidence indicating that the injury was received on or before September 22, 1980, and notice to the employer was given on the day of injury, the employer’s filing of notice to controvert on October 17, 1980, was untimely. Moon v. Cook & Co., 170 Ga. App. 569, 317 S.E.2d 642 (1984). Twenty-one day statute of limitations for notice to controvert was tolled and notice to controvert filed 23 months after injury was allowed when injured employee was contacted shortly after the accident by a representative of the insurer, but the employee did not disclose questionable circumstances of the injury which occurred during private endeavors, and the employer impliedly misrepresented to insurer that the employee was engaged in county work at the time of the accident. Spiva v. Union County, 172 Ga. App. 151, 322 S.E.2d 351 (1984), overruled on other grounds, Bahadori v. Sizzler #1543, 230 Ga. App. 52, 505 S.E.2d 23 (1997), Bahadori v. National Union Fire Ins. Co., 270 Ga. 203, 507 S.E.2d 467 (1998). Review limited by failure to take appeal. — Superior court erred in determining that the original award of attorney’s fees should have been reversed for a lack of sufficient evidence to support it when no appeal was taken before the time 814 34-9-221 WORKERS’ COMPENSATION for appeal passed. The only issue that the superior court was authorized to consider was whether the subsequent construction of the original award as evidencing an award of add-on attorney’s fees was correct. Dawson v. Atlanta Processing Co., 190 Ga. App. 293, 378 S.E.2d 695 (1989). Hearing on responsibility of subsequent insurer required. — Trial court erred in dismissing a request for a hearing sought by an employer’s prior workers’ compensation insurance carrier since an ALJ should have conducted a hearing on the issue presented by the carrier, namely, whether the next insurer for the employer was responsible for providing a claimant with benefits. TIG Specialty Ins. Co. v. Brown, 283 Ga. App. 445, 641 S.E.2d 684 (2007). Failure to comply with section not waiver of challenge to benefits. — Failure to comply with O.C.G.A. § 34-9-221 in suspending or terminating benefits does not prevent the employer/ insurer from contending that no or lesser benefits are due after a certain date due to a change in condition; rather, it subjects the employer/insurer to potential liability for attorney fees if the failure was without reasonable grounds. Sadie G. Mays Mem. Nursing Home v. Freeman, 163 Ga. App. 557, 295 S.E.2d 340 (1982). Failure to file notice within 21 days does not act as estoppel preventing an employer and insurer from controverting a claim for compensation. The General Assembly has provided other sanctions against the failure to so file in O.C.G.A. § 34-9-108. Raines & Milam v.