81 day Rule: When is Evidence “Newly Discovered”?

An employer argued that evidence was "newly discovered" because it was not available when benefits were voluntarily commenced within 21 days of knowledge of the injury. Citing Georgia Power v. Pinson, 167 Ga. App. 90 (1983), the employer contended that because toxicology results could not possibly have been procured before the employer commenced benefits before the 21st day under O.C.G.A.§34-9-221(h), the evidence falls under the definition of 'newly discovered evidence.' In Pinson, the court held that in order to qualify as newly discovered evidence, '[t]he evidence sought to be introduced must not be evidence of a cumulative or merely impeaching character, but must be of a character as likely would have produced a different result had the evidence been procurable at first hearing. It must be shown that the evidence was not known to the party at the time of the original hearing, and that, by reasonable diligence, this new evidence could not have been secured.' [Cit.]" Id. at 91. In lieu of a hearing, "newly discovered evidence" cannot have been available before benefits were voluntarily paid, said the employer, citing Anderson v. Araguel, Sanders, Carter & Swain et al., 163 Ga. App. 610 (1982), and it did not matter that the evidence was, in fact, discovered before the expiration of the 60 day period of O.C.G.A. §34-9- 221(h).

But this interpretation of the 81 day rule under O.C.G.A. §34-9-221(h) would turn the statute on its head and render it meaningless. Under the employer's view, the only evidence that would not constitute 'newly discovered evidence' would be evidence that was discoverable with diligence prior to the commencement of voluntary payments. Therefore, according to the employer, it had 60 days to act on information that was discoverable through diligence in the first 21 days after the injury, and it had forever to act on information that was only available from Day 22 forward. But O.C.G.A. §34-9-221(h) specifically "addresses situations in which the employer has begun paying compensation but subsequently determines that grounds exist for contesting payment." Southeastern Aluminum Recycling, Inc. v. Rayburn, 172 Ga. App. 648, 649 (1984). "This provision affords an employer another opportunity to controvert a claim if the employer changes its mind about controverting a claim." Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 117 (1996). "The language of OCGA § 34-9-221(h) is clear." Id. at 119. Overruling a case in which the employer was permitted to controvert although it "missed the 60-day deadline" but "had access to the necessary evidence prior to the deadline," the court in Carpet Transport, Inc. v. Pittman, 187 Ga. App. 463 (1988) noted, "those employers/insurers who have not filed a timely initial notice to controvert pursuant to OCGA § 34-9-221(d), but who have initiated voluntary payment of compensation are given by subsection (h) an additional 60-day period within which they can controvert, on any ground whatsoever, the employee's right to those benefits." 187 Ga. App. at 467 .

The purpose of O.C.G.A. §34-9-221(h) is to limit the ability of the employer/insurer to controvert a claim, not to extend it ad infinitum, a principle that was recently reaffirmed by the Court of Appeals. "The statute provides a mechanism for a relatively speedy resolution of the employer's unilateral decision to withhold benefits from its employee. If the employer does not comply with the statutory requirements for terminating benefits, then it must bear the consequences. This court's decisions in Hamby and Rayburn are decades old, and if the legislature disagreed with them it had many opportunities to amend the Workers' Compensation Act accordingly." Crossmark v. Strickland, 310 Ga. App. 303, 307 (2011). "If an employer begins paying benefits … it may still controvert the claim and has a longer period of time within which to do so, specifically within 60 days of the date the first payment of benefits was due. Id. at 306. "Diligent employers/insurers are fully protected under the interpretation of OCGA § 34-9-221(h) as a 60-day statute of limitation." Columbus Intermediate Care Home, Inc. et al. v. Johnston et al., 196 Ga. App. 516 (1990).

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