2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 9 - Workers' Compensation
Article 6 - Payment of Compensation
Part 2 - Method of Payment
§ 34-9-221. Procedure; Payment Controverted by Employer; Delinquency Charge; Enforcement

1. Income benefits shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability is controverted by the employer. Payments shall be made in cash, by negotiable instrument, or, upon agreement of the parties, by electronic funds transfer.
2. The first payment of income benefits shall become due on the twenty-first day after the employer has knowledge of the injury or death, on which day all income benefits then due shall be paid. Thereafter, income benefits shall be due and payable in weekly installments; provided, however, that the board may, in its discretion, authorize payments to be made in different installments if it determines that this would be beneficial to all parties concerned. Such weekly payments shall be considered to be paid when due when mailed from within the State of Georgia to the address specified by the employee or to the address of record according to the board. Such weekly payments shall be considered to be paid when due when mailed from outside the State of Georgia no later than three days prior to the due date to the address specified by the employee or the address of record according to the board. Such weekly payments shall be considered to be paid when due at the time they are made by electronic funds transfer to an account specified by the employee.
3. Upon making the first payment and upon suspension of payment for any cause, the employer shall immediately notify the board and the employee, in accordance with forms prescribed by the board, that payment of income benefits has begun or has been suspended, as the case may be.
4. If the employer controverts the right to compensation, it shall file with the board, on or before the twenty-first day after knowledge of the alleged injury or death, a notice in accordance with the form prescribed by the board, stating that the right of compensation is controverted and stating the name of the claimant, the name of the employer, the date of the alleged injury or death, and the ground upon which the right to compensation is controverted.
5. If any income benefits payable without an award are not paid when due, there shall be added to the accrued income benefits an amount equal to 15 percent thereof, which shall be paid at the same time as, but in addition to, the accrued income benefits unless notice is filed under subsection (d) of this Code section or unless this nonpayment is excused by the board after a showing by the employer that owing to conditions beyond control of the employer the income benefits could not be paid within the period prescribed.
6. If income benefits payable under the terms of an award are not paid within 20 days after becoming due, there shall be added to the accrued income benefits an amount equal to 20 percent thereof, which shall be paid at the same time as, but in addition to, the accrued benefits unless review of the award is granted by the board or unless this nonpayment is excused by the board after a showing by the employer that due to conditions beyond the control of the employer the income benefits could not be paid within the period prescribed.
7. Within 30 days after final payment of compensation, the employer shall send to the board a notice in accordance with the form prescribed by the board, stating that final payment has been made and stating the total amount of compensation paid, the name of the employee and any other person to whom compensation has been paid, the date of the injury or death, and the date to which income benefits have been paid.
8. Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.
9. Where compensation is being paid with or without an award and an employer or insurer elects to controvert on the grounds of a change in condition or newly discovered evidence, the employer shall, not later than ten days prior to the due date of the first omitted payment of income benefits, file with the board and the employee or beneficiary a notice to controvert the claim in the manner prescribed by the board.
10. The board or any administrative law judge shall issue such orders as may be necessary to enforce the penalty provisions of this Code section.

(Ga. L. 1920, p. 167, § 55; Code 1933, § 114-705; Ga. L. 1978, p. 2220, § 10; Ga. L. 1985, p. 727, § 7; Ga. L. 1987, p. 806, § 6; Ga. L. 1990, p. 1409, § 11; Ga. L. 1992, p. 1942, § 19; Ga. L. 1998, p. 1508, § 6; Ga. L. 1999, p. 817, § 4; Ga. L. 2000, p. 1321, § 5; Ga. L. 2002, p. 846, § 3; Ga. L. 2012, p. 801, § 2/HB 971.)

- For article surveying developments in Georgia workers' compensation law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 323 (1981). For annual survey of workers' compensation, see 38 Mercer L. Rev. 431 (1986). For review of 1998 legislation relating to labor and industrial relations, see 15 Ga. St. U.L. Rev. 185 (1998). For annual survey article discussing workers' compensation law, see 52 Mercer L. Rev. 505 (2000). For survey article on workers' compensation law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 459 (2003). For annual survey of law of worker's compensation, see 56 Mercer L. Rev. 479 (2004). For survey article on workers' compensation law, see 59 Mercer L. Rev. 463 (2007). For survey article on workers' compensation law, see 60 Mercer L. Rev. 433 (2008). For annual survey of law on workers' compensation, see 62 Mercer L. Rev. 383 (2010). For annual survey on workers' compensation, see 64 Mercer L. Rev. 341 (2012). For annual survey on workers' compensation law, see 66 Mercer L. Rev. 247 (2014). For annual survey on workers' compensation, see 70 Mercer L. Rev. 289 (2018). For note on the 1992 amendment of this Code section, see 9 Ga. St. U.L. Rev. 285 (1992). For note on the 2000 amendment of this Code section, see 17 Ga. St. U.L. Rev. 231 (2000).

ANALYSIS

• General Consideration
• Practice and Procedure
• Application

General Consideration

Constitutionality.

- Ten-day notice of the impending termination and post-termination hearing procedures of O.C.G.A. § 34-9-221 and Board Rule 22 (i) are constitutionally sufficient to satisfy the requirements of due process. Cryder v. Oxendine, 24 F.3d 175 (11th Cir. 1994).

Legislative intent behind O.C.G.A. § 34-9-221 was to minimize the hardship on the injured worker by requiring the employer either to act quickly when it knows a claim is controvertible, so as to expedite final resolution of the matter, or to pay compensation while investigating the matter more closely. Southeastern Aluminum Recycling, Inc. v. Rayburn, 172 Ga. App. 648, 324 S.E.2d 194 (1984).

The 1985 amendment of O.C.G.A. § 34-9-221(e) did not create a new substantive right to have the benefits paid when due, but merely shortened the time period within which the employer can make the payments without a penalty, which is a procedural matter, and the change could therefore be applied retroactively. Dan River, Inc. v. Carroll, 192 Ga. App. 537, 385 S.E.2d 686 (1989).

Decision of the board has the same force and effect as the decision or judgment of any other tribunal known to the system of jurisprudence. Hartford Accident & Indem. Co. v. Webb, 109 Ga. App. 667, 137 S.E.2d 362 (1964).

- 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.) may be conclusively established by an agreement filed with and approved by the compensation board, or by an award of the board after hearing evidence. Regardless of which of these two methods is employed, it is a decision or judgment of the board which must be complied with until it is superseded by a new award. Hartford Accident & Indem. Co. v. Webb, 109 Ga. App. 667, 137 S.E.2d 362 (1964); American Mut. Liab. Ins. Co. v. Chandler, 112 Ga. App. 574, 145 S.E.2d 816 (1965).

Penalty due under O.C.G.A. § 34-9-221(e) was part of the "compensation" required to be paid to the employee without an award and, when the employer failed to pay the penalty, its notice to controvert and suspend payment under O.C.G.A. § 34-9-221(h) was invalid. Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 479 S.E.2d 767 (1996).

- Penalty for late payment of benefits under O.C.G.A. § 34-9-221(f) was not required to be authorized by an award of the board in order be included in a judgment of the superior court rendered under O.C.G.A. § 34-9-106. Ayers v. Rembert, 241 Ga. App. 698, 527 S.E.2d 290 (1999).

- 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).

- 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).

- 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 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).

- 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).

- 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).

- 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).

- 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).

- By enacting 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).

- 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 (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. 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).

- 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).

- 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).

- 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).

- 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 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).

When the claimant was injured in a motorcycle accident, the employer was not time-barred from controverting the claimant's workers' compensation claim on the ground that the accident did not arise out of or in the course of the claimant's employment because the prescription card given to the claimant by the employer's insurer that was used to pay for pain medications was not compensation as it was not an income benefit. Kendrick v. SRA Track, Inc., 341 Ga. App. 818, 801 S.E.2d 911 (2017).

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).

- 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).

- Plain language of O.C.G.A. § 34-9-221(f) and Rule 221(a) 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).

- 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).

- 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).

- 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 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).

- 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 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. Milam, 161 Ga. App. 860, 289 S.E.2d 785 (1982).

- There is no specificity in O.C.G.A. § 34-9-221(d) concerning grounds on which right to compensation can be controverted. Georgia Power Co. v. Safford, 171 Ga. App. 387, 319 S.E.2d 537 (1984).

- Word "shall" in subsection (d) of O.C.G.A. § 34-9-221 makes it mandatory that such notice be filed. Raines & Milam v. Milam, 161 Ga. App. 860, 289 S.E.2d 785 (1982).

- Intentional delay of workers' compensation payments did not give rise to an independent cause of action against the employer or its insurer, as the penalties for such a delay were provided by O.C.G.A. § 34-9-221(e). Bright v. Nimmo, 253 Ga. 378, 320 S.E.2d 365 (1984); Dutton v. Georgia Associated Gen. Contractor Self-Insurers Trust Fund, 215 Ga. App. 607, 451 S.E.2d 504 (1994).

Georgia penalty provision did not preclude the plaintiff from maintaining the plaintiff's claim for damages against an insurance carrier for cessation and withholding of workers' compensation benefits pursuant to a garnishment order. Brazier v. Travelers Ins. Co., 602 F. Supp. 541 (N.D. Ga. 1984).

There was no independent cause of action, apart from the remedies available under O.C.G.A. § 34-9-221(e), when an employer and its insurer failed to pay income benefits "without reasonable grounds", resulting in the foreclosure on the employee's home. Bright v. Nimmo, 756 F.2d 1513 (11th Cir. 1985).

Workers' compensation claimant was not entitled to a late-payment penalty since the law firm's return of the first check issued by the defendants did not invalidate the otherwise valid, timely payment; there was evidence that the first check was timely mailed and complied with the terms of the settlement agreement. Abdul-Hakim v. Mead Sch. & Office Prods., 267 Ga. App. 121, 598 S.E.2d 808 (2004).

State board of workers' compensation properly assessed a 15 percent penalty against an employer for its failure to make benefit payments on a weekly basis as required by O.C.G.A. § 34-9-221(b); the statute required that payments be made weekly unless an alternate schedule was approved by the board, and it was undisputed that the employer had changed its payment schedule absent an order directing otherwise. Renu Thrift Store, Inc. v. Figueroa, 286 Ga. App. 455, 649 S.E.2d 528 (2007), cert. dismissed, 2007 Ga. LEXIS 812 (Ga. 2007).

Superior court did not err in affirming the decision of the Appellate Division of the State Board of Workers' Compensation to award a workers' compensation claimant benefits following the employer/insurer's total failure to file notice of the employer's intention to suspend the worker's benefits because the employer/insurer's noncompliance with O.C.G.A. § 34-9-221 was without reasonable grounds; the employer/insurer's complete failure to file the required termination form required the employer to pay benefits until the hearing date, and not only did the employer/insurer fail to give notice to the claimant before terminating the claimant's income benefits, until the hearing, the employer never explained why the employer did so. S&B Eng'rs & Constructors Ltd. v. Bolden, 304 Ga. App. 534, 697 S.E.2d 260, cert. dismissed, No. S10C1789, 2010 Ga. LEXIS 912 (Ga. 2010).

District court properly concluded that the court lacked subject matter jurisdiction to order an employer and workers' compensation insurer to pay workers' compensation benefits because the State Board of Workers' Compensation had exclusive jurisdiction over such claims and the workers' compensation scheme provided the employee a remedy under O.C.G.A. §§ 34-9-221 and34-9-240. Prine v. Chailland, Inc., F.3d (11th Cir. Nov. 9, 2010)(Unpublished).

Because the Appellate Division failed to make any substituted findings of fact, it was impossible to determine whether any evidence supported its conclusion that an administrative law judge had no discretion under O.C.G.A. § 34-9-108(b)(2) to assess attorney fees for a violation of O.C.G.A. § 34-9-221. J & D Trucking v. Martin, 310 Ga. App. 247, 712 S.E.2d 863 (2011).

It was error to reverse a penalty assessed against an employer under O.C.G.A. § 34-9-221(f) on the basis of a finding that O.C.G.A. § 34-9-15(b) gave the board discretion not to assess the penalty because the employee and the employer reached an approved liability stipulated settlement after a compensable injury was established, and the employer did not pay benefits within 20 days of the adoption of that agreement by the Workers' Compensation Board and the issuance of an award based thereon; O.C.G.A. § 34-9-15(b) only applied to no-liability stipulated settlements, and the parties entered into an approved liability stipulated settlement. Brewer v. Wellstar Health System, 314 Ga. App. 234, 723 S.E.2d 526 (2012).

- 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).

- When an award is made pursuant to a consent judgment, a judgment which is nonappealable, the award becomes "due" for purposes of O.C.G.A. § 34-9-221(f) when approved by the board. Linehan v. Combined Ins. Co., 176 Ga. App. 815, 338 S.E.2d 34 (1985).

- Discovery of fact by insurer that injury did not arise out of and in the course of employment because claimant was working for partner individually and not for partnership when injury was sustained, was not newly discovered evidence under O.C.G.A. § 34-9-221(h) as it could have been diligently ascertained by the insurer before the first payment was made. Anderson v. Araguel, Sanders, Carter & Swain, 163 Ga. App. 610, 295 S.E.2d 750 (1982).

Evidence supported finding that employer acted with due diligence in obtaining a third medical test to determine employee's condition, the results of the test having constituted "newly discovered evidence" which authorized the suspension of benefits. Carden v. Arrow Co., 193 Ga. App. 539, 388 S.E.2d 348 (1989).

When the employer is thwarted in its opportunity to discover the evidence supporting its defense of the claim by the claimant's own misrepresentation of facts, evidence of noncompensability which is discovered after the expiration of the 60-day period for controverting a claim is newly discovered evidence which gives the employer a ground for controverting benefits. Gordon County Farms v. Edwards, 204 Ga. App. 770, 420 S.E.2d 607, cert. denied, 204 Ga. App. 921, 420 S.E.2d 607 (1992).

- Diligence requirement under subsection (h) of O.C.G.A. § 34-9-221 for introduction of new evidence (new evidence must not have been discoverable by reasonable diligence) is judged on the basis of when compensation was voluntarily initiated rather than the date of the "first hearing." Georgia Power Co. v. Pinson, 167 Ga. App. 90, 305 S.E.2d 887 (1983).

Application

Physician's opinion must not have been obtainable previously to be newly discovered.

- In order to be given consideration as "newly discovered evidence", under subsection (h) of O.C.G.A. § 34-9-221, not only would a physician's subsequent opinion have to be nonimpeaching of the physician's previous one, it would also have to be shown that it was not previously obtainable in the exercise of ordinary diligence. Georgia Power Co. v. Pinson, 167 Ga. App. 90, 305 S.E.2d 887 (1983).

- When purported employer has no express knowledge that a claim is brought against the employer in the employer's individual capacity and when so apprised does not controvert the basic fact that the employer is or was an employer of the alleged employee, then the employer need not the file the form prescribed by rule promulgated under O.C.G.A. § 34-9-221 to controvert right to benefits nor would the employer be subject to an adverse presumption from a failure to file such form, but rather burden of showing employer-employee relationship and of showing that the employer was subject to provisions of the Workers' Compensation Act, O.C.G.A. § 34-9-1 et seq., by virtue of having the requisite number of employees rests upon claimant. Fowler v. Gilmer County Comm'rs of Rds. & Revenues, 164 Ga. App. 1, 294 S.E.2d 708 (1982).

Allowance of attorney's fees under O.C.G.A. § 34-9-108 must be predicated upon determination that the noncompliance with O.C.G.A. § 34-9-221 of the party against whom such fees are to be assessed was "without reasonable grounds". Union Carbide Corp. v. Coffman, 158 Ga. App. 360, 280 S.E.2d 140 (1981).

Merely engaging attorney to enforce rights under O.C.G.A. § 34-9-221 does not authorize claimant to an award of attorney's fees under O.C.G.A. § 34-9-108 unless the employer's noncompliance with § 34-9-221 was "without reasonable grounds". Union Carbide Corp. v. Coffman, 158 Ga. App. 360, 280 S.E.2d 140 (1981).

When an employer prevailed in asserting that any award for a worker's occupational disease would have to be apportioned pursuant to O.C.G.A. § 34-9-285, the employer's controverting the worker's claim obviously was not without reasonable grounds, so the worker was not entitled to attorney fees under §§ 34-9-108 and34-9-221. Whitaker v. Fieldcrest Mills, Inc., 174 Ga. App. 533, 330 S.E.2d 761 (1985).

"Unlawfulness" is not the correct standard for awarding attorney's fees pursuant to O.C.G.A. § 34-9-108(b)(2); an award of attorney's fees pursuant to that statute requires a finding of non-compliance with O.C.G.A. § 34-9-221 which was "without reasonable grounds." When there was affirmative evidence of a reasonable ground for the employer to believe that no payment was due, and thereby to commit a technical violation of the time-frame requirements of § 34-9-221, the court erred in affirming the board's award of attorney's fees. Waffle House, Inc. v. Bozeman, 194 Ga. App. 860, 392 S.E.2d 48 (1990).

When the employer filed the notice to controvert more than 21 days after knowledge of the employee's injury and made no explanation for its noncompliance with O.C.G.A. § 34-9-221(d), the appellate division's award of attorney fees to the employee was proper. Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 473 S.E.2d 166 (1996).

When the finding of the board that the employer's defense was made without reasonable grounds was without evidence to support it, the superior court did not err by reversing an award of attorney's fees to the claimant. Autry v. Mayor of Savannah, 222 Ga. App. 691, 475 S.E.2d 702 (1996).

Employer's argument relating to a change in the claimant's condition based solely on the treating physician's change of opinion was not reasonable, and an award of attorney's fees to the claimant was proper. St. Joseph's Hosp. v. Cope, 225 Ga. App. 781, 484 S.E.2d 727 (1997).

Employer's failure to timely file a notice that the employer intended to controvert the claimant's workers' compensation claim for benefits, plus its failure to give a reasonable explanation for not doing so, meant the administrative law judge was authorized to award attorney's fees and the trial court erred in determining otherwise in a case in which the employer was accused of unreasonably defending the claim. Milliken & Co. v. Poythress, 257 Ga. App. 586, 571 S.E.2d 509 (2002).

Because a WC-2 was sufficient to place the state board of workers' compensation and an employee on notice of the reason for terminating the employee's benefits due to a change in condition for the better, the employee was entitled to benefits for the ten days following the filing of the notice and attorney's fees pursuant to O.C.G.A. § 34-9-108 if the board determined that the employer's failure to comply with O.C.G.A. § 34-9-221 was unreasonable. Reliance Elec. Co. v. Brightwell, 284 Ga. App. 235, 643 S.E.2d 742 (2007), cert. denied, 2007 Ga. LEXIS 535 (Ga. 2007).

Appellate Division of the State Board of Workers' Compensation did not err in assessing attorney fees against an employer under the Workers' Compensation Act, O.C.G.A. § 34-9-108(b)(2), because the evidence supported the Appellate Division's finding that the employer's noncompliance with the Act, O.C.G.A. § 34-9-221, was without reasonable grounds; the employer failed to pay an employee any income benefits for the first week the employee was not working or that the income benefits it did pay were short $100 per week, and the employer did not offer any explanation for the employer's noncompliance with O.C.G.A. § 34-9-221. Crossmark, Inc. v. Strickland, 310 Ga. App. 303, 713 S.E.2d 430 (2011).

- Reversal of an order requiring an employer to pay the employee's attorney's fees and expenses was affirmed because the employee was not successful on the claim for benefits under the Workers Compensation Act, O.C.G.A. § 34-9-1 et seq. Daniel v. Bremen-Bowdon Inv. Co., 348 Ga. App. 803, 824 S.E.2d 698 (2019).

- If, based on the administrative law judge's finding that the suspension of benefits and the defense of the matter were unreasonable, the administrative law judge assessed attorney fees against the employer pursuant to subsection (i) of O.C.G.A. §§ 34-9-221 and34-9-108(b), and when, subsequently, the employee dismissed the employee's attorney and entered into settlement negotiations, which resulted in settlement of the employee's case, such a settlement agreement did not terminate the attorney's right to attorney fees, although the attorney played no part in the negotiations. Bass v. Annandale at Suwanee, Inc., 187 Ga. App. 209, 369 S.E.2d 529 (1988).

- If the claimant elects to collect the award and penalty when due and an appeal is filed between the 20th and 30th day which results in a reversal, then both the award and penalty are nullified and must be reimbursed to the employer. McLean Trucking Co. v. Florence, 179 Ga. App. 514, 347 S.E.2d 333 (1986).

State of Georgia may not make workers' compensation payments without an agreement approved by the Workers' Compensation Board. 1975 Op. Att'y Gen. No. U75-23.

RESEARCH REFERENCES

ALR.

- Admissibility of ancient documents as hearsay exception under Rule 803(16) of Federal Rules of Evidence, 186 A.L.R. Fed. 485.