Cagle's, Inc. v. Kitchens, 68735

• Decision Date: 21 November 1984
• Docket Number: No. 68735,68735
• Citation: 324 S.E.2d 550,172 Ga.App. 698
• Court: Georgia Court of Appeals
• Parties: CAGLE'S, INC. v. KITCHENS.

Page 550

324 S.E.2d 550

172 Ga.App. 698

CAGLE'S, INC. v. KITCHENS.

No. 68735.

Court of Appeals of Georgia.

Nov. 21, 1984.

James B. Hiers, Jr., William G. Boyd, Atlanta, for appellant.

Doye E. Green, Macon, for appellee.

BENHAM, Judge.

The administrative law judge ("ALJ") in this workers' compensation case found that the employer had notice on September 10, 1982, that the claimant was alleging disability due to injury. Pursuant to OCGA § 34-9-221(b), the due date of the first payment of benefits would have been September 24, 1982. Appellant began payment of benefits prior to that date without an award. A notice to controvert was filed on November 30, 1982, seven days after the 60-day period allowed by OCGA § 34-9-221(h). On the basis of that tardiness and the fact that the notice to controvert did not allege that it was based on a change of condition or on newly discovered evidence, the ALJ ruled that appellant could not controvert the claim, notwithstanding the ALJ's finding that the disability was not the result of an accident arising out of and in the course of claimant's employment. That ruling was upheld by the State Board of Workers' Compensation and by the superior court. We granted a discretionary appeal for the purpose of considering the holding of the ALJ, the full board, and the superior court in light of this court's decision in Raines & Milam v. Milam, 161 Ga.App. 860, 289 S.E.2d 785 (1982). We reverse.

We held in Raines & Milam that an employer's noncompliance with OCGA § 34-9-221(d) does not estop the employer from controverting the claim. The basis for that decision was that although the language in subsection (d) requiring that a notice to controvert be filed within a specific time was mandatory, sanctions for noncompliance were provided elsewhere in the Workers' Compensation Act. In Southern Bell etc. Co. v. Hodges, 164 Ga.App. 757(1), 298 S.E.2d 570 (1982), that holding was interpreted as a statement that OCGA § 34-9-221 is not a statute of limitation. We are of the opinion that an interpretation of subsection (h) of that Code section as a statute of limitation (the interpretation given it by the ALJ, the board, and the superior court) is inconsistent with the statutory scheme of OCGA § 34-9-221 as interpreted by this court. We hold, therefore, that subsection (h) is no more a statute of limitation than subsection (d).

Appellee argues that it would be unfair in a situation in which subsection (h) applies, that is, a case in which the employer has begun paying benefits without an award, to permit the employer to controvert the claim when more than 60 days have passed and the claimant has begun to rely on the benefits. However, if the claimant is found to be entitled to the benefits, the employer will be liable for attorney fees as a sanction for its noncompliance with OCGA § 34-9-221. See OCGA § 34-9-108(b)(2). If the claimant is found not to be entitled to benefits, as was the situation in the present case, we do not see how any legitimate interest of the claimant is...