Metropolitan Atlanta Rapid Transit Authority v. Ledbetter

361 S.E.2d 878, 184 Ga. App. 518, 1987 Ga. App. LEXIS 2293

• Court: Court of Appeals of Georgia
• Decided: September 9, 1987
• Docket: 74746
• Status: Published

Opinions

Beasley, Judge.

On January 16, 1982, the appellee, Allen Ledbetter, injured his back in the course of his employment with the Metropolitan Atlanta Rapid Transit Authority. For approximately two weeks he received workers’ compensation income benefits, which were suspended upon his return to work. Ledbetter made no further claim for benefits until April 22, 1985, when his attorney contacted the State Board of Workers’ Compensation, requesting a hearing on a change in condition claim for permanent partial disability. The administrative law judge’s award of benefits for a twenty percent permanent partial disability was adopted by the full board and affirmed by the superior court. This discretionary appeal followed.

In rejecting MARTA’s defense that Ledbetter’s claim was barred by the two-year limitation period provided under OCGA § 34-9-104 (b), the ALJ held that “[s]ince it is obvious that claimant had continual back pain from his work related injury of 1982 and that he had some degree of permanent partial disability, the WC-2 suspending payment of income benefits for total disability did not represent final payment of income benefits due.” The ALJ apparently relied upon Holt’s Bakery v. Hutchinson, 177 Ga. App. 154 (3) (338 SE2d 742) (1985), wherein this Court ruled that where there is evidence to support a finding that a claimant was potentially due other income benefits at the time of the compensable injury and was not paid the benefits, then OCGA § 34-9-104 (b) is inapplicable.

MARTA contends that because the instant case is so distinguishable factually from Holt’s Bakery, reliance upon that case in awarding Ledbetter benefits was a perversion of the law. To the contrary. What is meant by “potential” is not that the type of disability may arise in the future, but rather that there is evidence that it existed at the time although no claim was made for it.¹ In Holt’s Bakery, there was evidence that Mrs. Hutchinson suffered what was thought to be temporary partial disability from the time of cessation of temporary total disability until the time she claimed permanent partial disability. Although she did not file a claim for such benefits, this evidence supports the conclusion that there were benefits due her under the act during this time. Thus, the statute was not running.

The same reasoning applies in the present case, although here the arguable unclaimed benefit due was permanent partial disability. We should not disregard the plain language of the legislature that a party may apply for a change of condition two years from “the date of final payment of income benefits due under this chapter.” OCGA § 34-9-104 (b). (Emphasis supplied.)

Applying it to the facts of this case, the judgment of the lower court is affirmed.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Pope and Benham, JJ., concur. Deen, P. J., Carley and Sognier, JJ., dissent.

1 We made distinctions between different types of benefits and the law thereby applicable to them in ITT Continental Baking Co. v. Powell, 182 Ga. App. 533 (356 SE2d 267) (1987). There the categories related to the separate procedures for medical benefit claims as opposed to lost wages claims.