402 S.E.2d 54 | Ga. Ct. App. | 1991
The relevant facts in this workers’ compensation case are as follows: In 1979, an employee of appellee-employer injured her back in an employment-related accident and appellee-insurer commenced the payment of workers’ compensation benefits at what was the then-maximum rate of $110 per week. The employee eventually returned to work but, in March of 1983, she again injured her back in yet another employment-related accident. Although the maximum benefits for an employment-related accident had been raised to $135 per week, the employee was nevertheless afforded only $110 per week in benefits as if the condition of her original 1979 back injury had merely changed for the worse. In November of 1984, however, the employee sought a full $135 per week in benefits on the ground that she had suffered an entirely new and subsequent injury to her back in 1983 which was independently compensable at the then-applicable maximum rate. The employee’s claim was controverted, but not on the basis that she had actually suffered a mere change-of-condition rather than a new and subsequent injury to her back in March of 1983. The
“An employer or insurer shall notify the administrator of the [F]und of any possible claim against the [F]und as soon as practicable, but in no event later than 78 calendar weeks following the injury or the payment of an amount equivalent to 78 weeks of income or death benefits, whichever occurs last.” (Emphasis supplied.) OCGA § 34-9-362 (a). The employer and insurer seek reimbursement from the Fund for the payment of benefits for an injury that was suffered by the employee in March of 1983, which injury clearly occurred more than 78 calendar weeks before any notification was provided to the Fund in April of 1985. Accordingly, unless the April 1985 notification was provided to the Fund before the equivalent of 78 weeks of benefits had already been paid to the employee for her March 1983 injury, the employer and insurer have no viable claim for reimbursement. “Failure to comply with the [notification] provisions . . . will constitute a bar to recovery from the . . . Fund.” OCGA § 34-9-362 (c).
Insofar as the employee has been paid benefits since March 1983, it would appear that the April 1985 notice to the Fund was indeed untimely. However, it is the employer’s and insurer’s contention that their April 1985 notification was timely because those benefits which were paid to the employee before March 1985 cannot be considered as the payment of benefits for her March 1983 injury, but must be deemed to be the payment of benefits for a worsened change in the condition of her original 1979 injury. Thus, under the employer’s and insurer’s analysis, the employee had been paid benefits for her March 1983 injury only since March 1985 and their April 1985 notification to the Fund was timely.
It is true that, until March of 1985, the employee was erroneously being paid only $110 in weekly benefits as if she had merely suffered a change in her condition rather than an independently com
Judgment reversed.