General Ins. Co. of America v. Bradley, 58415

• Decision Date: 06 February 1980
• Docket Number: No. 58415,58415
• Citation: 263 S.E.2d 446,152 Ga.App. 600
• Parties: GENERAL INSURANCE COMPANY OF AMERICA et al. v. BRADLEY.
• Court: Georgia Court of Appeals

Page 446

263 S.E.2d 446

152 Ga.App. 600

GENERAL INSURANCE COMPANY OF AMERICA et al. v. BRADLEY.

No. 58415.

Court of Appeals of Georgia.

Argued Sept. 25, 1979.

Decided Oct. 16, 1979.

Rehearing Denied Nov. 30, 1979.

Certiorari Denied Feb. 6, 1980.

Robert L. Husby, Jr., Joe B. Sartain, Jr., Gainesville, H. P. Arnall, Atlanta, for appellants.

William V. George, Lavinia B. George, Forest Park, Richard W. Best, Hapeville, for appellee.

Roger J. Dodd, Valdosta, B. C. Gardner, Jr., John F. Salter, Sr., Albany, amicus curiae.

UNDERWOOD, Judge.

In workers' compensation proceedings (governed by the law as it existed prior to Ga.L.1978, p. 2220 et seq.), the board is authorized, upon review of a prior award, to make a change in condition award revising the previously-awarded "compensation." Code § 114-709 (Ga.L.1973, pp. 232, 245-247). That section provides: "(U)pon the application of any party in interest on the grounds of a change in condition, the (Board) may, not later than two years from the date that the Board is notified that the final payment of a claim has been made pursuant to a Board order, review any award . . . and, on such review, may make an award ending, diminishing or increasing the compensation previously awarded . . ., subject to the maximum or minimum provided in this Title . . ."

The insurer here asks that we hold, for the first time, that medical benefits as authorized by § 114-501 are included within the term "compensation" as used in § 114-709, supra, so as to be a part of the subject matter upon which that section, with its two-year limitation on such reviews, operates. The contention of the insurer is that we should adopt the wider meaning of the term "compensation" so as to include medical benefits in order to be consistent with those cases in which, in other contexts, we have made a like application of the term "compensation."

See, e. g., Western Union Tel. Co. v. Smith, 50 Ga.App. 585, 178 S.E. 472 (1934) (medical benefits included in term "compensation" for purposes of employer's right, to extent of "compensation" paid, to subrogation against tortfeasor causing the employee's injuries); Liberty Mut. Ins. Co. v. Bray, 148 Ga.App. 868, 253 S.E.2d 209 (1979) (even though no compensation for disability or loss of earnings allowed under first award, the provision for medical expenses in that award is "compensation" so as to authorize later change in condition award); Jackson v. Georgia Bldg. Auth., 144 Ga.App. 275, 241 S.E.2d 54 (1977) (lump sum settlement of "all claims" pursuant to § 114-417 includes claims for medical benefits). See also Priest v. Exposition Cotton Mills, 86 Ga.App. 301, 71 S.E.2d 743 (1952).

The result, according to the insurer, is that the present application for additional medical benefits, which seeks physician's services subsequent to those previously awarded and furnished, is governed by § 709 and is barred thereunder because it was made more than two years after notice of final payment of the prior award had been filed with the board.

The syllogistic symmetry which might result from a consistent definition of the term "compensation" is superficially appealing. However, it is unsupportable to the extent that it results in the engrafting of the two-year, change in condition requirements of § 114-709 upon § 114-501. The latter provides: "The employer shall furnish the employee . . . such medical . . . treatment . . . which in the judgment of the (board) shall be reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment . . . Upon the request of an employee or an employer, the Board may in its judgment . . . order a change of physician or treatment and designate other treatment or another physician, and in such case, the expenses shall be borne by the employer upon the same terms and conditions as hereinbefore provided." (Emphasis supplied.)

Thus § 501 contains its own provision for changing or amending a prior award for medical treatment, and there is no requirement that a change in condition be shown nor that the application be brought within any period of limitation. While we thus think it plain from the face of § 501 that it is self-contained and not subject to the limitations and requirements of § 709, we note that this conclusion is also indicated by the separate legislative history of the two sections.

As originally enacted the forerunner of § 709 contained no time limitation upon the board's authority to review and modify awards on the basis of change in condition. Ga.L.1920, pp. 167, 191 § 45. On the other hand the forerunner of § 501, while placing no time limit upon the board's authority to "order a change in such medical attentions so furnished by the employer," did limit the employer's responsibility to "a period of not exceeding thirty days after an accident." Ga.L.1920, pp. 167, 181, § 26.

In 1937, however, the scope of § 709 was circumscribed so as to impose for the first time the two-year limitation in question here today (Ga.L.1937, pp. 528, 532), whereas the 30-day limit of § 501 was expanded so as to authorize treatment for a period of ten weeks, "and for such additional time as in the judgment of the (board) will tend to lessen the period of disability . . . In case of a controversy arising between the employer and the employee relative to the continuance of medical, surgical, hospital, or other treatment, the (board) may order such further treatment as may in the discretion of the (board) be necessary. The (board) may at any time upon request of an employee order a change of treatment and designate other treatment . . . and in such a case the expense thereof shall be borne by the employer upon the same terms and conditions as hereinbefore provided in this section for medical and surgical treatment and attendance." (Emphasis supplied.) Ga.L.1937, pp. 528, 532. Thus while the Act of 1937 was restricting the scope of § 709 to the two-year limitation period, it was simultaneously enlarging § 501 so as to provide for the extension and revision of medical benefits into the indefinite future by administrative action of the Board.

In 1949 § 501 was amended to provide that in cases of controversy the board's authority to order further treatment was to be exercised "within the limits of time and amount as set forth above," presumably the ten weeks otherwise...