Sunbelt Plastic Extrusions, Inc. v. Paguia

• Decision Date: 19 August 2021
• Docket Number: A21A0867
• Citation: 862 S.E.2d 566,360 Ga.App. 894
• Parties: SUNBELT PLASTIC EXTRUSIONS, INC. et al. v. PAGUIA.
• Court: Georgia Court of Appeals

360 Ga.App. 894

862 S.E.2d 566

SUNBELT PLASTIC EXTRUSIONS, INC. et al.

v.PAGUIA.

A21A0867

Court of Appeals of Georgia.

August 19, 2021

Benjamin Allen Leonard, Matthew Allen Pittman, Atlanta, for Appellant.

Thomas W. Herman, Macon, for Appellee.

McFadden, Presiding Judge.

The primary issue in this workers’ compensation case is whether Sunbelt Plastic Extrusions, Inc. and its insurer (collectively, "Sunbelt") proved their statute-of-limitation defense to Julie Paguia's claim for a designation that her work-related injury is catastrophic. An administrative law judge with the State Board of Workers’ Compensation and the appellate division of the board ruled that it did not. The superior court affirmed. We granted Sunbelt's application for discretionary appeal and now hold that some evidence supports the board's factual finding. We also find that evidence supports the designation of Paguia's work-related injury as catastrophic. So we affirm.

1. Facts and procedural posture.

When we review an award of the State Board of Workers’ Compensation, we construe the evidence

in a light most favorable to the party prevailing before the board; every presumption in favor of validity of the award should be indulged in by the reviewing court; neither the superior court nor this court has any authority to substitute itself as a factfinding body in lieu of the board; and weight and credit to be given witness testimony and conflicts in evidence are for the board's exclusive determination.

Publishers Circulation Fulfillment v. Bailey , 215 Ga. App. 136, 137, 449 S.E.2d 645 (1994) (citation omitted).

So viewed, the evidence shows that on March 31, 2009, Paguia injured her left hand in the course and scope of her employment with Sunbelt and sought workers’ compensation benefits. She was entitled to 400 weeks of temporary total disability benefits, through November 29, 2016, and Sunbelt began paying those benefits.

On November 20, 2018, Paguia filed a form with the State Board of Workers’ Compensation requesting that her injury be deemed catastrophic, a designation that would entitle her to continued payments. See OCGA § 34-9-261. Sunbelt countered that Paguia's request was barred by the two-year statute of limitation contained in OCGA § 34-9-104 (b). The administrative law judge conducted a hearing, rejected Sunbelt's statute-of-limitation defense, and found that Paguia's injury is catastrophic. The appellate division adopted the administrative law judge's findings of fact, conclusions of law, and award, and made additional findings of fact and conclusions of law on the statute-of-limitation issue. The superior court affirmed and we granted Sunbelt's application for discretionary appeal.

2. Statute-of-limitation defense.

Sunbelt argues that the administrative law judge and the appellate division erred by rejecting its statute-of-limitation defense. We disagree.

OCGA § 34-9-104 (b) allows a claimant to seek additional workers’ compensation benefits because of a change in condition (which Paguia sought here, see Williams v. Conagra Poultry of Athens , 295 Ga. App. 744, 746, 673 S.E.2d 105 (2009) ), provided that "not more than two years have elapsed since the date the last payment of income benefits ... was actually made[.]" "Thus, once an employer ends the payment of [temporary total disability] benefits to an employee, that employee must file a claim for any additional ... benefits within two years of that cessation date; otherwise, the claim is time barred." Roseburg Forest Products Co. v. Barnes , 299 Ga. 167, 169 (1), 787 S.E.2d 232 (2016).

We have deferred to the appellate division's determination that a payment is "actually made" under OCGA § 34-9-104 (b) when it is mailed to the recipient. Lane v. Williams Plant Svcs. , 330 Ga. App. 416, 419-420 (1) (a), 766 S.E.2d 482 (2014) (whole court) ("We need not decide whether the so-called mailbox rule ... should be applied to the limitation period in OCGA § 34-9-104 (b), because the Appellate Division's determination that a payment is ‘actually made’ when it is mailed to the recipient is reasonable and entitled to deference.") (footnote omitted). See also Rawleigh Medical Co. v. Burney , 25 Ga. App. 20 (a), 102 S.E. 358 (1920) (the term "mailed" means "the deposit of the letter in a United States post office or United States postal mail box, or in the custody of a United States mail collector"). See generally United Grocery Outlet v. Bennett , 292 Ga. App. 363, 364, 665 S.E.2d 27 (2008) (discussing the evolution of the statute-of-limitation-triggering language in OCGA § 34-9-104 (b) ).

a. Findings of fact.

It is not disputed that Paguia filed her form requesting a designation that her injury was catastrophic on November 20, 2018. The issue is whether Sunbelt proved that it mailed the last payment of income benefits to Paguia more than two years before that date. Lane , 330 Ga. App. at 420 (1) (a), 766 S.E.2d 482.

At the hearing before the administrative law judge, Sunbelt presented the testimony of the insurer's workers’ compensation claims adjuster assigned to Paguia's claim. The claims adjuster testified that she completed a claims payment authorization form that instructed her administrative assistant to issue a check for Paguia's last two weeks of temporary total disability benefits. She testified that generally, once she completes such a form, she "send[s] it to [her] administrative assistant, and the administrative assistant creates[s] a check in the computer system and a check is printed in [their] office." She added that "the post office comes every day and picks the checks up and they're sent out," sometime between 3:30 and 4:30.

The claims adjuster testified that she is not the person who creates or mails the checks and that she did not know when her administrative assistant created the check to Paguia or when the administrative assistant placed it in the location from which the person from the post office picked it up. But, she testified, her opinion was that the check was mailed on November 15, 2016, the date printed on Paguia's check.

From this evidence, the appellate division found that the insurer's routine practice was for the adjuster to complete a claims payment authorization form, which is conveyed to an administrative assistant who then creates a check in the computer system. It found that the check is printed in the insurer's office and then someone from the post office picks up the check for mailing. The appellate division found that the claims adjuster completed the claims payment authorization form for Paguia on November 14, 2016, a check was printed, and it was picked up for mailing. But the appellate division found that Sunbelt presented no evidence about the time that elapsed between the various steps. Although Sunbelt contended that the check was mailed the day after the adjuster completed the claims payment authorization form, the appellate division found that Sunbelt presented no evidence that a one-day interval between the completion of the form and the mailing of the check is part of the insurer's routine practice; no evidence of the length of time between the administrative assistant's receipt of the claims payment authorization form and the creation of the check in the computer system; and no evidence of the length of time between the creation of the check and the printing of the check. Thus, the appellate division concluded, there was insufficient evidence to determine when the check was mailed, other than some time after November 14, and Sunbelt did not carry its burden of proving its statute-of-limitation defense. See Hulbert v. Domino's Pizza , 239 Ga. App. 370, 374 (2), 521 S.E.2d 43 (1999) (employer has the burden of proof when raising an affirmative defense).

Sunbelt argues that the appellate division erred by failing to determine whether another theory was less probable than Sunbelt's theory based on circumstantial evidence that the check was mailed to Paguia on November 15, 2016. So, it argues, the case should be remanded to the appellate division to determine whether there was another more or less probable theory. We disagree.

The crux of Sunbelt's argument is that unless the appellate division explicitly found that other theories are more probable, it was bound to find that the check was mailed on November 15 based on the circumstantial evidence. First, we note that the cases upon which Sunbelt relies in support of its position are procedurally distinguishable. Those cases, Patterson v. Kevon, LLC , 304 Ga. 232, 818 S.E.2d 575 (2018), and Callaway v. Quinn , 347 Ga. App. 325, 819 S.E.2d 493 (2018), concern a plaintiff's burden of pointing to sufficient evidence to create a genuine issue of material fact in order to survive a defendant's summary judgment motion. More importantly, the appellate division did not distinguish between circumstantial and direct evidence in rejecting the statute-of-limitation defense. It simply and correctly analyzed whether Sunbelt presented sufficient evidence to meet its burden of proving its affirmative defense.

Sunbelt argues that the appellate division erroneously required it to introduce evidence of a mailing receipt to prove the date of mailing even though OCGA § 34-9-104 (b) imposes no such requirement. On the contrary, the appellate division did not require Sunbelt to introduce a mailing receipt. It acknowledged that "evidence of an insurance company's routine practice regarding the issuance and mailing of checks can be used to prove how and when a specific check was mailed...." See OCGA § 24-4-406 ("Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with such habit or routine practice."). But it found that Sunbelt failed to meet its burden of proof, given its failure to introduce evidence of the...