                               SECOND DIVISION
                                ANDREWS, P. J.,
                             MCFADDEN and RAY, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                       July 15, 2014




In the Court of Appeals of Georgia
 A14A0388. WARD v. PRE-ENGINEER SYSTEMS et al.

      MCFADDEN, Judge.

      John Ward appeals from a superior court order reversing the decision of the

State Board of Workers’ Compensation granting his request for nurse case

management services. The court concluded that Ward was not entitled to such

services because they were not an authorized workers’ compensation benefit at the

time of his injury. We reverse.

      In 1973, Ward was injured when he fell approximately 40 feet while working

on a construction site. He suffered various injuries from the fall, including a traumatic

brain injury that has resulted in ongoing cognitive impairment. The employer, Pre-
Engineer Systems,1 and its insurer have paid for various workers’ compensation

benefits arising from the fall. Among other things, Ward received rehabilitation

services from 1999 to 2009, when those services were suspended. In 2011, Ward filed

a request to reinstate the rehabilitation services. The request was denied in an

administrative order, and Ward appealed, seeking a hearing before an administrative

law judge.

      At the outset of the evidentiary hearing, the administrative law judge noted that

Ward was seeking services in the form of nurse case management and that the

employer argued that there was no legal authority to award those services at the time

of the injury in 1973. Ward presented evidence of his complex medical needs and his

declining cognitive abilities, which has resulted in his wife being appointed as his

permanent guardian. The administrative law judge found that the evidence clearly and

overwhelmingly demonstrated that Ward has had many difficulties with his medical

treatment and “is entitled to the designation of a rehab supplier/nurse case manager

to assist the employee with medical treatment in this claim.” In reaching this

conclusion, the administrative law judge, among other things, rejected the employer’s

      1
        We note that in the record two similar, but different, names for the employer
appear. For purposes of this opinion, we use the same name used on the notice of
appeal and listed on the board’s decision.

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argument that Ward is not entitled to such services because they were not listed as a

benefit at the time of the injury in 1973, and “were not granted as a workers’

compensation benefit until 1975.”

      The employer appealed the decision to the Appellate Division of the State

Board of Workers’ Compensation, which upheld the award and adopted the

administrative law judge’s findings and conclusions as its own. The employer then

appealed to the superior court, which reversed the board’s decision, concluding that

Ward “is not entitled to receive nurse case management services, because this service

was not available under the workers’ compensation laws in Georgia on the date of the

Claimant’s work related accident in 1973.” We granted Ward’s application for

discretionary review, and this appeal followed.

      Ward asserts that the superior court erred in holding that he is not entitled to

nurse case management services on the ground that such benefit was not available at

the time of his 1973 accident. We agree.

      Workers’ compensation benefits may be “retroactively applied in those cases

which involve pre-existing compensable on-the-job injuries, since to do so would not

render compensable an injury which would not otherwise be compensable but would,

at most, merely expand the scope of treatment required to be provide for an injury the

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compensability of which is not in question.” Interchange Village v. Clark, 185 Ga.

App. 97, 99 (2) (363 SE2d 350) (1987) (citations, punctuation and emphasis omitted).

      An ongoing workers’ compensation case provides a unique context for
      retroactivity analysis, . . . since once an employer’s obligation to pay for
      a work-related injury is established, the case may continue for decades.
      During this time the Board will be promulgating and changing rules
      which define and redefine the scope of the employer’s obligations and
      the worker’s rights with respect to medical care; and it would not make
      sense to freeze those obligations and rights as they were at the time of
      the injury when the need for medical care continues. Accordingly,
      workers’ compensation statutes and rules which do not render
      compensable an injury which would not otherwise be compensable, but
      which merely affect the scope of treatment required, will be applied to
      ongoing cases where the injury preceded the effective date of the law.

Chatham County Dept. of Family & Children Svcs. v. Williams, 221 Ga. App. 366,

366-367 (1) (471 SE2d 316) (1996).

      In this case, it is undisputed that Ward suffered a compensable work-related

injury in 1973. Thus, even assuming that the employer was correct in claiming that

the rehabilitation/nurse case management service awarded by the board was not an

available benefit until after the date of the injury, such an award did not render

compensable an otherwise non-compensable injury, and instead merely affected the

scope of the benefit allowed in this ongoing workers’ compensation case. See

Interchange, supra at 99-100 (2) (employee entitled to in-home attendant care even


                                           4
though such a benefit was not available at the time of the injury); Hopson v. Hickman,

182 Ga. App. 865, 867 (1) (357 SE2d 280) (1987) (affirming award of attendant nurse

care per retroactive application of OCGA § 34-9-200 (a) benefits provision for

medical and other treatment, items and services). Accordingly, the superior court

erred in reversing the appellate division’s decision on the ground that nurse case

management services were not an available workers’ compensation benefit on the

date of the accident.

      Judgment reversed. Andrews, P. J., and Ray, J., concur.




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