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Barnes v. Roseburg Forest Prods. Co.

Court of Appeals of Georgia

July 16, 2015

BARNES
v.
ROSEBURG FOREST PRODUCTS COMPANY et al

Cert. applied for.

Workers' compensation. Dooly Superior Court. Before Judge Pridgen.

Kermit S. Dorough, Jr., for appellant.

Speed, Seta, Martin & Trivett, Eric L. Trivett, Danielle R. Taylor; Swift, Currie, McGhee & Hiers, Michael Rosetti, for appellees.

Georgia Legal Foundation, Dylan A. Bess, Todd K. Maziar, Pamela M. Orenstein, amici curiae.

OPINION

Phipps, Presiding Judge.

We granted Willie Barnes's application for discretionary appeal in this workers' compensation case involving a catastrophic injury. Barnes appeals the superior court's order affirming the decision of the appellate division of the State Board of Workers' Compensation (the " Board" ), which had adopted the decision of the administrative law judge (" ALJ" ) denying Barnes's claim for recommencement of temporary total disability income benefits. Barnes contends that, contrary to the decision of the Board (as affirmed by the superior [333 Ga.App. 274] court), neither the two-year statute of limitation for change in condition claims[1] nor the one-year statute of limitation for fictional new accident

Page 749

claims[2] barred his claim. He also cites as error the Board's failure to address his motion for attorney fees. For the reasons that follow, we reverse and remand with direction.

In resolving this appeal, we must keep in mind the various standards of review applicable in this case. ... When reviewing awards in workers' compensation cases, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the Board. ... The Board's decisions based on erroneous legal theories are subject to the de novo standard of review. The question of whether the superior court applied the correct legal standard in evaluating the evidence is one of law, which this court reviews de novo.[3]

Construing the evidence in the light most favorable to the party prevailing before the Board, the facts relevant to this appeal are as follows. In August 1993, Barnes was working at Georgia-Pacific Corporation's wood processing plant when his leg went through rotten flooring and he landed in an auger, causing an immediate amputation of his left leg below the knee. Georgia-Pacific and its workers' compensation insurance servicing agent, CCMSI, accepted Barnes's claim as catastrophic[4] and began paying him temporary total disability (" TTD" ) income benefits. Barnes was fitted with a prosthetic leg, and he returned to work at Georgia-Pacific in January 1994. At that time, his TTD benefits were replaced with permanent partial disability (" PPD" ) benefits.

When Barnes was unable to perform the duties his former position required, he was transferred to a position with duties he was able to perform. Although the new duties were also difficult and caused pain, he continued working in a light-duty position until 2008. Barnes's last PPD payment was issued in May 1998, as " [t]he entire [PPD] benefit ha[d] been paid." He did not receive any workers' compensation income benefits thereafter.

[333 Ga.App. 275] In 2006, while Barnes was still working in a light-duty/supervisory position, Georgia-Pacific sold the plant to Roseburg Forest Products Company, which assumed Georgia-Pacific's assets and liabilities. In 2008, Roseburg Forest eliminated positions at the plant, including Barnes's supervisory position. Barnes continued working at the plant, but in a position that was more physically demanding and caused pain in and swelling of his injured leg. Over time, the new duties exacerbated his injury. On September 10, 2009, Roseburg Forest instituted a second round of lay-offs, this time terminating Barnes. Shortly after he was terminated, Barnes consulted CCMSI to find out whether he was eligible for a recommencement of workers' compensation benefits; he was told he was not eligible.

In August 2012, after consulting an attorney who reportedly told him he was eligible for benefits, Barnes filed with Georgia-Pacific a notice of claim to resume TTD income benefits. Asserting a 1993 date of injury, Barnes claimed that he had remained catastrophically injured since 1993 (though he had continued to work, with limitations) and that, as a catastrophically injured worker, he was entitled to receive benefits beginning on the date he no longer had a job. He also requested attorney fees and a hearing. Georgia-Pacific (as " Emp/insurer" ) controverted the claim, asserting that, inter alia, Barnes was no longer an employee. ...


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