On January 30, 1994, GP stopped paying TTD benefits to Mr. Barnes, and the TTD benefits were replaced with permanent partial disability (“PPD”) benefits. The PPD benefits continued until May 1998.

In 2006, the GP plant was sold to Roseburg Forest Products Company. Mr. Barnes continued working for Roseburg, but was laid off on September 11, 2009.

On November 13, 2009, Mr. Barnes consulted a doctor regarding chronic knee pain.

Two years later, on December 6, 2011, he was fitted for a new prosthetic leg, which was paid for by CCMSI, the company that continued as the workers' compensation servicing agent for Roseburg and Roseburg's insurer, ACE American Insurance Company.

On August 30, 2012, Mr. Barnes filed a claim to resume TTD benefits, asserting August 13, 1993, the date of his original workplace accident, as the date of injury.

On November 30, 2012, Mr. Barnes filed a separate notice of claim, alleging a “fictional new injury” based on the date that he was terminated from his employment, September 11, 2009. (Under Georgia law, a fictional new injury occurs where the claimant is injured on the job but continues to perform the duties of his or her employment until such time that the claimant is forced to cease work because of the gradual worsening of the claimant's condition which was at least partly attributable to the claimant's physical activity in continuing to work subsequent to his or her injury.)

The administrative law judge denied the claims as barred by the applicable statutes of limitation set out in OCGA §§ 34-9-104 (b) and 34-9-82. The Georgia Board of Workers' Compensation affirmed, as did the trial court. However, an appellate court reversed, finding that both of Mr. Barnes' claims were not barred by the applicable statutes of limitation.

The dispute reached the Georgia Supreme Court. There, Roseburg and its servicing agent for the 1993 claim, CCMSI, argued that the two-year statute of limitation contained in OCGA § 34-9-104(b) barred Mr. Barnes' August 2012 claim to resume receiving TTD benefits in connection with his 1993 injury.

In addition, Roseburg and its insurer, ACE American, argued that the one-year statute of limitations contained in OCGA § 34-9-82 barred Mr. Barnes' claim to receive benefits in connection with the fictional new injury that he said he suffered on September 11, 2009.

Georgia Law

OCGA § 34-9-104 (b) states:

[A]ny party may apply under this Code section for another decision [by the board] because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided that the prior decision of the board was not based on a settlement; and provided, further, that at the time of application not more than two years have elapsed since the date the last payment of income benefits pursuant to Code Section 34-9-261[temporary total disability] or 34-9-262 [temporary partial disability] was actually made under this chapter.

OCGA § 34-9-82 (a) states:

The right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.

The Georgia Supreme Court's Decision

The court reversed, finding that both of Mr. Barnes' claims were barred by the applicable statutes of limitation.

First, the court explained that once an employer ended the payment of TTD benefits to an employee, that employee had to file a claim for any additional TTD benefits within two years of that cessation date; otherwise, the claim was time barred.

It pointed out that GP had ceased paying TTD benefits to Mr. Barnes on January 30, 1994. Because Mr. Barnes had not filed his claim for the resumption of these benefits until over 18 years later, his claim was time barred, the court ruled.

The court said that this still was the result notwithstanding Mr. Barnes' claim that he was entitled to receive TTD benefits indefinitely based on the fact that his 1993 workplace injury remained designated as “catastrophic.” According to the court, regardless of Mr. Barnes having a right to receive weekly TTD benefits for his catastrophic injury until such time as he experienced a change in condition under OCGA § 34-9-104(a)(1), OCGA § 34-9-104(b) made clear that, for Mr. Barnes to enforce that right, he had to make a claim for those benefits within two years of the last weekly TTD benefit payment made to him by his employer. The court ruled that because Mr. Barnes filed his claim to assert his right to resume the payment of TTD benefits for his catastrophic injury 16 years too late, it was barred by the two-year statute of limitations of OCGA § 34-9-104(b).

The court reached the same conclusion with respect to Mr. Barnes' second claim, ruling that the one-year statute of limitations of OCGA § 34-9-82(a) barred Mr. Barnes' November 30, 2012 claim relating to the alleged fictional new injury that he claimed to have suffered as a result of losing his job on September 11, 2009.

It reasoned that, regardless of the substantive merits or lack thereof of Mr. Barnes' fictional new injury claim, because no weekly benefits had been paid to Mr. Barnes in connection with this alleged injury, he was required to file his claim within one year of the alleged injury or within one year of remedial treatment being provided.

The court noted that Mr. Barnes had received remedial treatment on November 13, 2009 for chronic knee pain that he claimed was connected to his fictional new injury, which would have extended the time period for him to file his claim for one more year. Therefore, the court found, he had until November 13, 2010 to file his claim. Because he did not file his claim until November 30, 2012, it was over two years late and already time barred, the court ruled.

It concluded by finding that the fact that Mr. Barnes sought additional remedial treatment in December 2011 did not revive his claim because it already had become time barred in November 2010.

The case is Roseburg Forest Products Co. v. Barnes, No. S15G1808 (Ga. June 6, 2016).