In the Supreme Court of Georgia



                                            Decided: September 22, 2014


                        S13G1812. MARTA v. REID.


      THOMPSON, Chief Justice.

      We granted a writ of certiorari to the Court of Appeals in Reid v.

MARTA, 323 Ga. App. 523 (746 SE2d 779) (2013), and posed this question:

Did the Court of Appeals err in holding that the proper statute of limitations for

a claim of statutory penalties for late benefits payments in workers’

compensation cases under OCGA § 34-9-221 is the general statute of

limitations, OCGA § 34-9-82, rather than the change in condition statute of

limitations, OCGA § 34-9-104 (b)? We answer this question affirmatively.

      The facts are not in dispute: Following an injury in October 1999,

employee filed a claim for workers’ compensation benefits. Shortly thereafter,

employer began paying the first of 32 payments of temporary total disability

benefits. Twelve of the payments were untimely under the terms of the workers’

compensation statute. Employee returned to work in June 2002 and his benefits
were suspended at that time. Nearly eight years later, employee demanded

payment of the statutory penalties due on the 12 late payments.1 Employer

refused the demand, asserting it was time barred.

       Employee sought a hearing and an order requiring employer to pay the

statutory penalties owed. The administrative law judge determined employee’s

claim was a “change in condition” claim under OCGA § 34-9-104, and,

therefore, barred under the two-year limitation period set forth in OCGA § 34-9-

104 (b).2 The Appellate Division of the State Board and the superior court

agreed. The Court of Appeals granted employee’s application for discretionary

review and reversed the judgment of the superior court, finding employee’s

claim for statutory penalties is not governed by any limitation period and,




       1
        See OCGA § 34-9-221 (e) which provides, in part: “If any income benefits payable
without an award are not paid when due, there shall be added to the accrued income benefits
an amount equal to 15 percent thereof, which shall be paid at the same time as, but in
addition to, the accrued income benefits . . .”
       2
        This provision reads, in pertinent part: “The board on its own motion may propose
or any party may apply under this Code section for another decision 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 benefits pursuant to Code
Section 34-9-261 or 34-9-262 was actually made under this chapter . . .”

                                              2
therefore, is not time barred.3 Employer sought, and we granted, a writ of

certiorari.

       Our workers’ compensation code contains two limitation periods. One,

OCGA § 34-9-82, sets forth the general limitation period for “all issues” claims,

i.e., claims in which claimant initially seeks compensation for a work-related

injury, and provides that a claim for benefits must be filed within one year of the

date of the accident or injury that gives rise to the claim. The other, OCGA §

34-9-104 (b), pertains to a “change in condition” claim.                       It applies to

modifications of prior final decisions and requires that such claims be filed

within two years of the last payment of income benefits.4 See generally Tara

       3
        The Court of Appeals recognized that, although some may view its result as absurd,
“any absurdity . . . stems from a hole in the workers’ compensation statute, namely its failure
to address the time frame in which statutory penalties or other compensation owed by the
employer . . . must be pursued by the employee.” Id. at 528.
       4
         This code section reads, in part: “[A]ny party may apply under this code section for
another decision because of a change in condition . . . provided . . . that at the time of
application not more than two years have elapsed since the date the last payment of income
benefits . . . was actually made . . .” The two year limitation period contained in the pre-1990
version of OCGA § 34-9-104 (b) provided that the statute did not begin to run until all
income benefits owed an employee had been paid. Thus, if an employee had never been paid
all the benefits he was due, they remained due, and the statute of limitation did not bar the
employee's claim. See, e.g., Wet Walls, Inc. v. Ledezma, 266 Ga. App. 685, 688 (4) (598
SE2d 60) (2004), citing Holts Bakery v. Hutchinson, 177 Ga. App. 154, 159-161 (3) (338
SE2d 742) (1985). Cases construing the pre-1990 version of the limitation period are not
applicable here.


                                               3
Foods v. Johnson, 297 Ga. App. 16, 18 (676 SE2d 418) (2009) (two separate

statutes of limitations apply to workers’ compensation claims); Baugh-Carroll

v. Hosp. Auth. of Randolph County, 248 Ga. App. 591, 594 (545 SE2d 690)

(2001) (provisions of “all issues” statute of limitation do not apply to “change

in condition” cases which follow the payment of disability benefits).

      Employer asserts this is a “change in condition claim,” that the two year

limitations period set forth in OCGA § 34-9-104 (b) applies, and that, therefore,

employee’s claim, which was filed more than two years after the last benefit

payment, is time barred. Employee disagrees, arguing that the one-year general

limitation period is applicable and that his claim is not time barred because the

original claim for benefits was filed within one year of the injury giving rise to

the claim. To resolve this disagreement, we must determine if employee’s claim

for payment of statutory penalties constitutes a change in condition under the

workers’ compensation code.

      Under OCGA § 34-9-104 (a) (1), “the term ‘change in condition’ means

a change in the wage-earning capacity, physical condition, or status of an

employee or other beneficiary covered by this chapter, which change must have

occurred after the date on which the wage-earning capacity, physical condition,

                                        4
or status of the employee or other beneficiary was last established by award or

otherwise.” In reaching its decision, the Court of Appeals correctly determined

that employee did not undergo a change in either his wage-earning capacity or

physical condition. However, the Court of Appeals failed to consider the third

type of change in condition, i.e., whether employee underwent a change in

“status.”

      Ordinarily, one associates a change in condition case with a change in an

employee’s physical or economic condition. The meaning of the word “status”

in the context of a change of condition case does not readily leap to mind. It has

been suggested that the term “appears to refer primarily to the dependency

status of a beneficiary.” James B. Hiers, Jr. and Robert R. Potter, Georgia

Workers’ Compensation Law and Practice § 23-2 (4th ed. 1981). That may be

so. After all, the statute speaks to the “status of the employee or other

beneficiary” and Georgia case law has used the term “status” in association with

dependency claims in workers’ compensation death cases. See, e.g., United

States Fidelity & Guaranty Co. v. Dunbar, 112 Ga. App. 102 (143 SE2d 663)

(1965); Fishten v. Campbell Coal Co., 95 Ga. App. 410 (98 SE2d 179) (1957).



                                        5
Moreover, other jurisdictions have connected the term “status” to the claims of

dependents. See, e.g., DiSabatino & Sons, Inc. v. Facciolo, 306 A2d 716, 719

(Del. 1973) (quoting 19 Del.C. § 2347); Gagliardi v. Downing & Perkins, Inc.,

208 A2d 334, 336 (Conn. 1965). Our code, however, expressly speaks to the

change in “status of the employee,” in addition to the status of a beneficiary and

it is axiomatic that “the fundamental rules of statutory construction . . . require

us to construe a statute according to its terms, to give words their plain and

ordinary meaning, and to avoid a construction that makes some language mere

surplusage.” Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24)

(2003). See also Footstar, Inc. v. Liberty Mut. Ins. Co., 281 Ga. 448, 450 (637

SE2d 692) (2006) (courts should refrain from construing statute in a way that

renders any part meaningless). Thus, the question remains: What is a change in

the status of an employee?

      Generally speaking, the word “status” is defined as the legal character or

condition of a person and his relationship with third persons or the state.

Ballantine’s Law Dictionary 1212 (3rd ed. 1969). Thus, in the workers’

compensation arena, the term “status of an employee” means the legal condition



                                        6
of an employee in the context of the employer-employee relationship. See

generally Kroger v. Wilson, 301 Ga. App. 345, 346-347 (687 SE2d 586) (2009)

(request for catastrophic injury designation constitutes request for change of

status or condition and is subject to two-year statute of limitation); Williams v.

Conagra Poultry of Athens, Inc., 295 Ga. App. 744, 746 (673 SE2d 105) (2009)

(catastrophic injury designation is a status); Wier v. Skyline Messenger Service,

203 Ga. App. 673, 676 (417 SE2d 693) (1992) (“Under the wording of OCGA

§ 34-9-104 (a), payment of income benefits by an employer without a formal

award will establish the status of the employee ‘by award or otherwise’ so as to

allow the employee to file for a change in condition within two years of the last

payment of income benefits without formal board intervention.”) With this

definition in mind, we conclude that employee’s status, i.e., his legal condition

vis-a-vis employer, was first established when employer began paying benefits

voluntarily and last established when the last benefit payment was made.5

      Nearly eight years after employee’s status was last established, employee



      5
         See OCGA § 34-9-104 (a) (1) (change in condition means change which occurs
“after the date on which the . . . status of the employee or other beneficiary was last
established by award or otherwise”).

                                          7
applied for another decision seeking to recover additional monies. These

monies were generated automatically due to the simple fact that the payments

to employee were late. The monies were themselves income benefits which

should have been added to and paid with the original payments. Trent Tube v.

Hurston, 261 Ga. App. 525, 528 (583 SE2d 198) (2003). Because employee

waited more than two years to seek a decision with regard to these additional

income benefits, his claim was barred by the limitation period set forth in the

change in condition statute.6

      In workers’ compensation cases, as in every case, there must be closure

and finality. “Statutes of limitation . . . are designed to promote justice by

preventing surprises through the revival of claims that have been allowed to

slumber until evidence has been lost, memories have faded, and witnesses have



      6
         Our conclusion is buttressed by the fact that the Workers’ Compensation Board
deemed the two-year change of condition limitation statute applicable in this case. Center
for a Sustainable Coast v. Coastal Marshlands Protection Committee, 284 Ga. 736, 741 (670
SE2d 429) (2008) (ordinarily great deference is given to administrative agency’s
interpretation of statute which it has the duty to enforce). At first blush, the Board was
intrigued by employee’s assertion that this is not a change in condition case within the
meaning of OCGA § 34-9-104 (a). However, looking to OCGA § 34-9-104 in its entirety,
it found employee’s claim to be a request for authorization for the recovery of income
benefits within the meaning of OCGA § 34-9-104 (b), and concluded that the two year
limitation period was indeed applicable.

                                            8
disappeared. The theory is that even if one has a just claim it is unjust not to put

the adversary on notice to defend within the period of limitation and that the

right to be free of stale claims in time comes to prevail over the right to

prosecute them.” Order of Railroad Telegraphers v. Railway Exp. Agency, 321

U.S. 342, 348-349 (64 SCt 582, 88 LE 788) (1944).

      Judgment reversed. All the Justices concur.




                                         9
