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Kendrick v. SRA Track, Inc.

Court of Appeals of Georgia, Fifth Division

June 20, 2017

KENDRICK
v.
SRA TRACK, INC. et al.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          McFadden, Presiding Judge.

         Charles Kendrick appeals from the affirmance of a board of workers' compensation decision denying his claim for benefits. Kendrick argues that the board erred in failing to find that the employer's defense is time-barred by OCGA § 34-9-221 (h), which requires that notices to controvert be filed "within 60 days of the due date of the first payment of compensation." But that argument rests on the proposition that a prescription card the employer gave Kendrick constitutes "compensation" under that provision. It does not. Kendrick also argues that the board erred in finding that his injury did not arise out of and in the course of his employment and in finding that he was not a continuous employee at the time of the injury. Because Kendrick was traveling to a motel near the job site when he was injured, those contentions are also without merit. So we affirm.

         1. Facts and procedural posture.

         On appeal from a workers' compensation award, we review findings of fact under the "any evidence" standard. McAdoo v. MARTA, 326 Ga.App. 788, 792 (1) (755 S.E.2d 278) (2014).

In reviewing a workers' compensation award, this [c]ourt must construe the evidence in the light most favorable to the party prevailing before the appellate division. The findings of the State Board of Workers' Compensation, when supported by any evidence, are conclusive and binding, and neither the superior court nor this [c]ourt may substitute itself as a factfinding body in lieu of the State Board.

Bell v. Gilder Timber Co., 337 Ga.App. 47 (785 S.E.2d 682) (2016) (citation omitted).

         So viewed, the evidence shows that Charles Kendrick was employed by SRA Track, Inc., [1] to help repair railroad tracks in various states, including Georgia, Alabama, Tennessee, North Carolina and Virginia. At approximately 4:00 p.m. on Sunday, January 13, 2013, Kendrick left his home in Georgia on his motorcycle to drive to a motel in Alabama, where he planned to spend the night before beginning work on an SRA job the next morning. While traveling to the motel, Kendrick was injured in a motorcycle accident. After the accident, Kendrick received a prescription card from SRA's insurer, which he used through December 2013 to help pay for pain medications.

         On January 28, 2014, Kendrick filed a workers' compensation claim for temporary disability benefits. On March 3, 2014, SRA and its insurer filed a notice to controvert the claim on the ground that the accident did not arise out of and in the course of Kendrick's employment. A hearing on the claim was held before an administrative law judge on July 24, 2015. Thereafter, on September 17, 2015, the ALJ issued an order denying Kendrick's claim for benefits, finding that the accident did not arise out of and in the course of Kendrick's employment and that he was not a continuous employee at the time he was injured. Kendrick appealed to the Appellate Division of the State Board of Workers' Compensation, which adopted the ALJ's order as its award. Kendrick then appealed to the superior court, which held a hearing but did not enter an order disposing of the appeal within 20 days of the hearing, thereby resulting in the board's award being affirmed by operation of law. See OCGA § 34-9-105 (b) Kendrick's application for discretionary appeal to this court was granted, and this appeal followed.

         2. OCGA § 34-9-221 (h).

         Kendrick argues that the superior court erred in failing to find that SRA was time-barred by OCGA § 34-9-221 (h) from controverting his claim on the ground that the accident did not arise out of or in the course of his employment. The argument is without merit because that code section does not apply to the facts of this case.

         OCGA § 34-9-221 (h) provides: "Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation." (Emphasis supplied.) Kendrick contends that the prescription card from SRA's insurer, which he used to pay for medications, constituted compensation under OCGA § 34-9-221 (h). Therefore, he argues, SRA was required to file a notice to controvert the workers' compensation claim within 60 days of the first payment with that card, but SRA failed to timely file such notice and it was thus barred from controverting the claim on any ground other than change in condition or newly discovered evidence.

         However, contrary to Kendrick's contention, the prescription card used to pay for medications was not compensation under that code section, which governs only compensation for income benefits, not medical benefits. See generally Jackson v. Georgia Bldg. Auth., 144 Ga.App. 275, 276 (241 S.E.2d 54) (1977) (in construing another statute, recognizing distinction between income benefits for lost wages and medical benefits in workers' compensation claims). As our Supreme Court has held, "OCGA § 34-9-221 governs the procedure for employers and insurers to follow in paying income benefits to employees and disputing the employees' claims." Meredith v. Atlanta Intermodal Rail Svcs., 274 Ga. 809, 810 (561 S.E.2d 67) (2002) (emphasis supplied). Indeed, it is apparent from the plain language of OCGA § 34-9-221 that it refers only to compensation for income benefits, while medical benefits are not mentioned anywhere in that code section. Consistent with that plain language, in a case that turned on the question of what is included in the term "compensation" under OCGA § 34-9-221 (h), this court relied on a prior holding "that the term 'compensation' [in that statute] encompasses all of the accrued income benefits[.]" Cartersville Ready Mix Co. v. Hamby, 224 Ga.App. 116, 118 (2) (479 S.E.2d 767) (1996) (citation, punctuation, and emphasis omitted). As our Supreme Court has further explained, "the state board [of workers' compensation] has interpreted subsection (h) [of OCGA § 34-9-221] as applying only when income benefits are being paid, and the General Assembly has failed to overturn either the court decisions or agency rules despite frequent amendments to the statute." Meredith, supra at 813 (emphasis supplied).

         In the instant case, SRA did not pay income benefits for lost wages to Kendrick. See OCGA § 34-9-260 (method for computing compensation generally based on average weekly wages). Because the prescription card was not an income benefit, it did not constitute compensation under OCGA § 34-9-221 (h). Accordingly, that code section does not apply to this case and ...


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