Change-in-Condition SOL and the Mailbox Rule in Georgia

Written by: Daniel Richardson, Esq.

When a claimant files a hearing request, the first thing to check is whether there is an applicable statute of limitations defense. The Georgia Court of Appeals recently addressed a statute of limitations defense raised in a claim for a catastrophic designation in Sunbelt Plastic Extrusions, Inc. v. Paguia, 2021 WL 3673896 (Ga. Ct. App. August 19, 2021).

On March 31, 2009, the Claimant injured her left hand at work. She was entitled to 400 weeks of TTD benefits through November 29, 2016. On November 20, 2018, she filed a form requesting that her injury be deemed catastrophic, which would entitle her to continued TTD payments. The Employer asserted a statute of limitation defense based on O.C.G.A. § 34-9-104(b). The ALJ rejected the SOL defense and also found that the injury was catastrophic. The appellate division affirmed the ALJ’s decision, and the Georgia Court of Appeals granted a discretionary review, ultimately affirming the decisions of the lower courts.

O.C.G.A. § 34-9-104(b) allows a claimant to seek additional workers’ compensation benefits because of a change in condition, provided that not more than two years have elapsed since the date the last payment of income benefits was actually made. Once an employer ends the payment of TTD, the employee must file a claim for additional benefits within two years of the cessation date. A payment is “actually made” when it is mailed to the recipient. (We note that there are other statutes of limitation addressing all-issues claims, as well as timelines for when notice must be given, or how long can pass before a hearing must be held on a claim, though these were not at issue in this particular claim.)

In Paguia it was held that there was insufficient evidence presented to determine when the last check was mailed, other than some time after November 14, 2016. The Court held that Sunbelt did not carry its burden of proving the SOL defense. There was evidence that the claims adjuster completed a claims payment authorization form for the claimant on November 14, 2016, that a check was printed, and that it was picked up for mailing, but no evidence was presented about the time that elapsed between the various steps. Sunbelt contended that it was likely mailed the next day, November 15, 2016, but presented no evidence that a one-day interval between the completion of the form and the mailing of the check was part of the insurer’s routine practice. There was no dispute in the evidence about when the request for a catastrophic designation was filed (Nov. 20, 2018), so if the employer/insurer had been able to establish that the check was mailed before November 20, 2016, they could have taken advantage of this defense.

The claimant also raised an argument against the mailbox rule from Lane v. Williams Plant Svcs., 330 Ga. App. 416 (2014). The Court in Lane held that a payment is “actually made” under O.C.G.A. § 34-9-104(b) when it is mailed to the recipient. She argued that Lane’s interpretation of the statute renders it unconstitutional because it deprives claimants of due process, and also that it grants the employer control over the statute of limitation since it only begins to run when the employer has mailed the last payment of benefits. The Court acknowledged that “there is no way for an employee to ascertain with certainty when a payment was mailed.” The uncertainty practically invites litigation. The Court pointed out that the rule is subject to manipulation, as the employer can, as here, combine two payments and thereby shorten the limitation period by a week. Despite the judicial hand-wringing over the practical difficulties created by Lane, the Court declined to overrule or change it, as doing so was not necessary for them to find in Ms. Paguia’s favor. They only needed to find that the Employer had failed to meet its burden under Lane and O.C.G.A. § 34-9-104(b). According to the Court, the issues raised by the Lane decision are policy issues, and they invited the state legislature to address it.

Please contact us for any questions you may have regarding whether a statute of limitations defense is applicable to the claims you are facing.