Bahadori v. National Union Fire Ins. Co.

• Decision Date: 23 November 1998
• Docket Number: No. S98G0610.,S98G0610.
• Citation: Bahadori v. National Union Fire Ins. Co., 507 S.E.2d 467, 270 Ga. 203 (Ga. 1998)
• Parties: BAHADORI v. NATIONAL UNION FIRE INSURANCE COMPANY et al.
• Court: Georgia Supreme Court

507 S.E.2d 467

270 Ga. 203

BAHADORI v. NATIONAL UNION FIRE INSURANCE COMPANY et al.

No. S98G0610.

Supreme Court of Georgia.

November 23, 1998.

John F. Sweet, Clements, Clark & Sweet, P.C., Atlanta, for Resa Bahadori.

Steven Allen Westby, Joseph Trotter Brasher, Hamilton, Westby, Marshall & Antonowich, Atlanta, for National Union Fire Insurance Company et al.

THOMPSON, Justice.

We granted certiorari to the Court of Appeals in this workers' compensation case¹ and posed this question: What limitation period applies to an action for the recovery of overpaid benefits under OCGA § 34-9-104(d)(2)? We hold that the limitation period in such an administrative action is two years.

In 1989, Bahadori was injured in an accident arising out of and in the course of his employment with Sizzler # 1543 and he was paid income benefits under the Workers' Compensation Act. After he recovered, Bahadori took a job with S & S Cafeterias in South Carolina and his benefits stopped.

Thereafter, Bahadori sought additional income benefits from Sizzler, asserting that, due to his injury, he was unable to work for S & S from September 8 through December 12, 1992. This claim was not controverted and it was paid in early 1993. Later that year, Bahadori sought income benefits and medical expenses, this time claiming he was unable to work from September 1 through December 12, 1993. During the course of investigating the 1993 claim, Sizzler concluded that Bahadori was actually working and receiving a salary during the time he claimed to be unable to work in both 1992 and 1993. Accordingly, in February 1995, Sizzler requested a hearing to controvert Bahadori's 1993 claim and to seek reimbursement of the income benefits paid for Bahadori's 1992 claim. Bahadori withdrew his 1993 claim for income benefits and contested Sizzler's administrative action to recover the overpayment of 1992 income benefits. The ALJ determined that Sizzler was entitled to be reimbursed for the 1992 income benefits because Bahadori worked and received a salary from S & S during the relevant time period. That ruling was upheld by the appellate division and affirmed by the superior court. The Court of Appeals granted Bahadori's application for discretionary appeal and a majority of that court affirmed, holding, inter alia, that a four-year limitation period applies to an administrative claim to recover the overpayment of income benefits.

1. In 1978, the legislature empowered the Workers' Compensation Board to order an employee to repay income benefits to an employer. OCGA § 34-9-104(d)(2); Ga. L.1978, p. 2220. Until that time, the board had no such power and an employer's claim for repayment of income benefits had to be brought in civil court. Georgia Casualty &c. Co. v. Randall, 162 Ga.App. 532, 533, 292 S.E.2d 118 (1982).

In its entirety, OCGA § 34-9-104(d) reads:

(1) Subject to the limitation in subsection (a) of this Code section that a change of condition was a change which occurred after the date on which the wage-earning capacity, physical condition, or status of the employee was last established by award or otherwise, the award or order contained in the final decision entered by the administrative law judge or the board shall be effective as of the time of change in condition as found by the administrative law judge or board, notwithstanding the retroactive effect of the award or order, provided that no execution following a judgment entered under Code Section 34-9-106 shall be affected.

(2) If the decision determines that an overpayment of income benefits has been made and no future income benefits are due, the administrative law judge or the board, in its discretion, may order the employee or beneficiary to repay to the employer or the insurer, the sum of the overpayments. Where there has been determined an overpayment of income benefits and future income benefits were due, the decision shall order the overpayment to be recovered by shortening the period of future weekly income benefits or by reducing the weekly benefit, or both. (Emphasis supplied.)

Viewed in context, the italicized words obviously refer to the decision of the board stemming from a change of condition claim. Thompson v. Eastern Air Lines, 200 Ga. 216, 221, 39 S.E.2d 225 (1946) (words of a statute are to be taken in their natural and ordinary signification). Thus, although the 1978 statute provides that an employer's claim for repayment of income benefits can be brought before the board, it is not so broad as to allow an employer to seek repayment of any overpayment under any circumstance. On the contrary, OCGA § 34-9-104(d)(2) is narrowly tailored so as to permit the board to adjudicate an overpayment claim only when it arises in the context of a change of condition hearing. This is manifest from the placement of the repayment statute, OCGA § 9-34-104(d)(2), within the general change of condition statute, i.e., OCGA § 34-9-104, and from the language of the repayment statute itself.

To the extent that Georgia Casualty &c. Co. v. Randall, supra, and Spiva v. Union County, 172 Ga.App. 151, 322 S.E.2d 351 (1984) authorize the board to adjudicate overpayment claims generally, i.e., in the absence of a change in condition claim, they are overruled.

2. Because OCGA § 34-9-104(d)(2) provides that a claim for overpayment of benefits can only be brought within the context of a change of condition case, and because the statute of limitation in a change of condition case is two years,² we hold that the two-year statute of limitation which is applicable generally to change of condition cases is applicable to a claim for the overpayment of income benefits. It follows that the Court of Appeals erred in holding that the statute of limitation in this case was four years.

The mere fact that our ruling can be said to yield two statutes of limitation (a two-year statute for an overpayment claim in an administrative action and a four-year statute for a reimbursement claim in civil court) is of no import. As Judge Blackburn pointed out in his dissent:

It is not inconsistent to allow some claims to go before the Board and some claims to continue to be filed in civil courts. Where there is no claim pending before the Board, a claim for recoupment of sums paid but not due is not different from any other claim seeking monetary recovery and should be handled by the civil courts of general jurisdiction until the legislature determines otherwise.

Bahadori v. Sizzler #1543, 230 Ga.App. at 60, 505 S.E.2d 23.

3. Sizzler asserts that, even if the statute of limitation in this case is two years, the statute should have been tolled as a matter of law on account of Bahadori's fraud. We cannot accept this assertion.

"The general rule supported by the decisions in most jurisdictions is that the fraudulent concealment of a cause of action [or other legal or quasi-legal claim] from the one to whom it belongs, by the one against whom it lies, constitutes an implied exception to the statute of limitations, postponing the commencement of the running of the statute until discovery or reasonable opportunity of discovery of the fact by the owner of the cause of action [or other legal or quasi-legal claim]." 51 AmJur2d, Limitation of Actions, § 147. This is the rule in Georgia. The fraud which tolls a statute of limitation must be such actual fraud as could not have been discovered by the exercise of ordinary diligence. Webb v. Lewis, 133 Ga.App. 18, 21, 209 S.E.2d 712 (1974); OCGA § 9-3-96 ("fraud by which the plaintiff has been debarred or deterred from bringing an action [tolls the statute of limitation]").

This rule is applied even where actual fraud is the gravamen of the action. The statute of limitation is only tolled until the fraud is discovered or by reasonable diligence should have been discovered. Shipman v. Horizon Corp., 245 Ga. 808, 267 S.E.2d 244 (1980). And the rule in workers' compensation cases is the same. Perkins v. Aetna Cas. &c. Co., 147 Ga.App. 662, 249 S.E.2d 661 (1978). Thus, where the fraud of an employee and his employer thwarts an insurer's reasonably diligent investigation, the time within which the insurer could controvert the claim is tolled. Spiva v. Union County, 172 Ga.App. 151, 322 S.E.2d 351, supra.

Did Bahadori's fraud thwart Sizzler's original investigation? Because no findings of fact were made in this regard, we cannot say that it did, or that it did not. Accordingly, we reverse and remand for...