In MARTA v. REID, S13G1812 (Supreme Court of Georgia, September 22, 2014), twelve of the 32 payments the employee received before returning to work were untimely, and he was owed a 15% late-payment penalty pursuant to OCGA §34-9-221(e). But he waited 8 years to make a claim for the penalties which were not paid when due. The ALJ, Appellate Division and Superior Court agreed with the employer that the employee's claim was a "change in condition" claim under OCGA §34-9-104, and therefore time-barred under the two-year limitation period. The Court of Appeals reversed, finding that the applicable statute of limitations was OCGA §34-9-82, and since the original claim for benefits was timely under that statute, the penalty claim was also timely.
Not so, says the Supreme Court. Under OCGA §34-9-104(a)(1), 'change in condition' means a change in the wage-earning capacity, physical condition, or status of an employee. "In the workers' compensation arena, the term 'status of an employee' means the legal condition of an employee in the context of the employer-employee relationship", said the Court. In this case, the employee's status was first established when the employer voluntarily began paying benefits, and was last established when the last payment was made. The late payment penalties were additional benefits to which the employee was entitled, but he had to make the claim for them within two years of when they were due.
The court reiterated that, "[E]ven if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and [the] right to be free of stale claims in time comes to prevail over the right to prosecute them." The real purpose of pursuing these late payments was to overcome the Two year Statute of Limitations. If an employee has not received weekly benefits within two years of the last payment and all penalties have been paid and benefits have been properly suspended by WC-2, then the need for future weekly benefits are prevented by the Employer. In this case the Employee was using the late payments excuse in order to get her weekly benefits restarted beyond the Two years.