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                                                                  November 18, 2014




In the Court of Appeals of Georgia
 A14A0895. LANE v. WILLIAMS PLANT SERVICES et al.

      BOGGS, Judge.

      In this discretionary appeal, Kenneth Lane, Sr. appeals from the superior court

order affirming the decision of the Appellate Division of the State Board of Worker’s

Compensation (“Appellate Division”), which had affirmed the decision of an

administrative law judge (“ALJ”). Lane contends that the superior court erred by (1)

concluding that no legal error resulted from the Appellate Division’s determination

that his request to reinstate income benefits was barred by the two-year statute of

limitation and (2) in concluding that the Appellate Division did not err by finding that

his employer was not liable for additional medical expenses. For the reasons

explained below, we affirm in part, reverse in part, and remand this case for

additional findings.
      In the absence of legal error, the factual findings of the Board must be
      affirmed by the superior court and by the Court of Appeals when
      supported by any evidence in the administrative record. Erroneous
      applications of law to undisputed facts, as well as decisions based on
      erroneous theories of law, however, are subject to the de novo standard
      of review.


(Citation and punctuation omitted.) MARTA v. Thompson, 326 Ga. App. 631 (757

SE2d 228) (2014). “Where statutory provisions are ambiguous, courts should give

great weight to the interpretation adopted by the administrative agency charged with

enforcing the statute. [Cit.]” Cook v. Glover, 295 Ga. 495, 500 (761 SE2d 267)

(2014). Courts should defer to an “agency interpretation so long as it comports with

legislative intent and is reasonable.” Cook v. Glover, 295 Ga. 495, 500 (761 SE2d

267) (2014). This deference is provided to the Workers’ Compensation Board’s

construction of workers’ compensation statutes. See MARTA v. Reid, Ga. n. 6 (Case

No. S13G1812, decided September 22, 2014).

      So viewed, the record shows that Lane received a workers’ compensation

award in 2008 for a low back injury. In March 2010, Lane’s employer suspended his

income benefits and mailed its last payment of benefits (through March 10, 2010) to




                                         2
him before March 9, 2010.1 On March 9, 2010, Lane moved for an “interlocutory

recommencement of income benefits” in which he contended that “benefits were

improperly suspended.”2 The ALJ denied this motion based upon its determination

      that there is not enough evidence on which to order a recommencement
      of income benefits. The only evidence presented was an old medical
      record that had been attached to a WC-104 filed the year before. . . . As
      a second reason for denying the request, I determine that this issue
      would be best handled by evidentiary hearing.”


      Despite this suggestion, Lane took no further action for almost two years. Then,

on March 13, 2012, he filed a WC-14 notice of claim requesting a hearing on his

request for reinstatement of income benefits from “July 1, 2010 and continuing.”

Following a hearing, the ALJ issued an order concluding that Lane’s request for

reinstatement of income benefits was barred by the statute of limitation, finding as

follows:

      OCGA § 34-9-104 (b) states:

               [A]ny party may apply under this Code section for another
               decision because of a change in condition ending, decreasing,


      1
          These facts were established by a stipulation of the parties.
      2
          The record before us does not include the March 9, 2010 motion.

                                            3
      increasing, or authorizing the recovery of income benefits
      awarded or ordered in the prior final decision, provided . . . 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 or 34-9-262 was actually made under this
      chapter.


I find that the Employee must have received the March 1, 2010 WC-2
not long after that date, given that his motion to reinstate income
benefits was filed on March 9, 2010, the day before his income benefits
were to end. As found before, though benefits were suspended effective
March 10, the last payment was mailed sometime before March 9. Under
OCGA § 34-9-221 (b), the date of mailing is considered the date of
payment, if mailed from outside of Georgia. Based on this, I find that the
date of the last payment of income benefits under this chapter was
“actually made” was therefore sometime before March 9. At any rate,
OCGA § 34-9-104 (b) could not have meant for the limitations statute
to begin running from the date the last payment of income benefits was
actually received, or the Legislature would have said so, rather than
saying “actually made.” . . .


Be that as it may, the Employee’s request for a hearing reinstating
income benefits was not made until March 13, 2012. Even considering
the official suspension date of March 10, 2010 as being the date the
payment was “actually made,” the WC-14 was filed more than two years
after that date. But considering that the date payment was actually made



                                    4
      was before that date, that puts the Employee’s hearing request even
      further, however slightly further, outside the limitations period.


With regard to Lane’s request for payment of certain medical expenses, the ALJ

concluded that because Lane was discharged from treatment by his authorized

physicians on April 13, 2010, he was entitled to seek treatment from a doctor of his

own choosing and obtain reimbursement from his employer.

      Lane appealed from the ALJ’s adverse ruling on income benefits, and his

employer filed a cross-appeal from the ALJ’s determination that it was liable for

Lane’s medical expenses. The Appellate Division “agree[d] with the [ALJ] that the

date of mailing is the date payment was actually made. See OCGA § 34-9-221 (b).”

It disagreed with the ALJ’s ruling on the employer’s liability for medical expenses,

finding:

      The preponderance of competent and credible evidence indicates that the
      Employer/Insurer did not terminate the Employee’s medical treatment
      in this case, nor did the authorized physicians terminate care to the
      Employee. Under these circumstances, the Employee is not entitled to
      change physicians unilaterally and require the Employer to be
      responsible for the medical expenses.




                                         5
Lane filed an appeal in superior court, and that court affirmed the Appellate

Division’s conclusion regarding the statute of limitation, stating:

      The agency charged with administering the Workers Compensation Act
      has determined that a payment of income benefits is deemed to have
      been made when an employer or insurer issues a check and mails it,
      rather than when an employee received it. The Court finds no basis for
      rejecting that interpretation of the Act. Construing “payment” to occur
      when the party obligated to make it takes the last step it is required to do
      to make it is not inconsistent with the language of the statute. There are
      many statutes that required mailing to be done in a manner which
      generates proof of the date of receipt. If the General Assembly had
      intended the above-statute to require proof of receipt to trigger the
      running of the statute, it could have so provided.


The superior court also affirmed the Appellate Division’s finding that the employer

was not liable for Lane’s medical expenses.

      1. Lane contends that the determination that his claim for additional income

benefits was time-barred is contrary to law. We disagree.

      (a) As noted above, this court must give deference to an agency’s interpretation

of a statute “so long as it comports with legislative intent and is reasonable.” Cook,

supra. We need not decide whether the so-called mailbox rule embodied in OCGA §




                                           6
34-9-221 (b)3 should be applied to the limitation period in OCGA § 34-9-104 (b),

because the Appellate Division’s determination that a payment is “actually made”

when it is mailed to the recipient is reasonable and entitled to deference.

      (b) Lane asserts that our decision in Trent Tube v. Hurston, 261 Ga. App. 525

(583 SE2d 198) (2003), mandates the conclusion that a payment is “actually made”

under OCGA § 34-9-104 (b) when it is received by the employee. We disagree. In

Trent Tube, neither the ALJ, the Appellate Division, nor this court addressed when

a mailed payment is “actually made.” While this court stated that the statute of

limitation under OCGA § 34-9-104 (b) “does not begin to run until an employee

receives his last payment,” 261 Ga. App. at 527 (1), we do not know the form or

method by which the employee received his payment in Trent Tube. We note that



      3
        This Code section provides in relevant part: “[I]ncome benefits shall be due
and payable in weekly installments. . . . Such weekly payments shall be considered
to be paid when due when mailed from within the State of Georgia to the address
specified by the employee or to the address of record according to the board. Such
weekly payments shall be considered to be paid when due when mailed from outside
the State of Georgia no later than three days prior to the due date to the address
specified by the employee or the address of record according to the board. Such
weekly payments shall be considered to be paid when due at the time they are made
by electronic funds transfer to an account specified by the employee.” Other portions
of OCGA § 34-9-221 provide for penalties when income benefits are not paid when
due. See, e. g., OCGA § 34-9-221 (e).

                                          7
OCGA § 34-9-221 (a) provides that “[p]ayments shall be made in cash, negotiable

instrument, or, upon agreement of the parties, by electronic funds transfer.”

      Additionally, the issue before us in Trent Tube was whether the statute could

be interpreted to run from “the date on which [the employee] was no longer entitled

to income benefits.” Id. at 526. In rejecting that argument, we stated, “The statute of

limitation does not begin to run until an employee receives his last payment . . .

whether he is later determined to be entitled to [it] or not. . . . Here, the last payment

was indisputably “actually made” to [the employee] . . . on [a date certain] less than

two years before he filed his change in condition claim.” Id. at 527-528 (1).

      While OCGA § 34-9-104 (b) could be reasonably interpreted to mean that a

mailed payment is “actually made” when it is received by the employee, an equally

reasonable interpretation is that such a payment is “actually made” when it is placed

in the mail. Now that the Board has interpreted the phrase “actually made” in OCGA

§ 34-9-104 (b) in the context of a mailed payment, we must defer to its reasonable

interpretation. We therefore disapprove of any language in Trent Tube that can be

construed as holding that a mailed payment is “actually made” when it is received by

the employee.



                                            8
      (c) We cannot consider Lane’s alternative argument that the motion he filed on

March 9, 2010 should be construed as a timely application under OCGA § 34-9-104

(b), because Lane does not provide a record citation for it in his brief, the Board’s

index to its record does not list this motion, and our review of the record did not

reveal it. See Waters v. PCC Airfoils, 328 Ga. App. 557, 563 ( SE2d ) (2014). “An

appellant has the burden of providing us with a sufficient record to enable us to

review the enumerations of error raised.” (Citation omitted.) Austell Healthcare v.

Scott, 308 Ga. App. 393, 395 (1) (707 SE2d 599) (2011).

      2. In his remaining enumeration of error, Lane asserts that the finding that his

employer is not liable for additional medical expenses is contrary to law.

      OCGA § 34-9-200 (a) requires an employer to furnish the injured
      employee with medical treatment which “shall be reasonably required
      and appear likely to effect a cure, give relief, or restore the employee to
      suitable employment,” and OCGA § 34-9-201 (b) (1) allows the
      employer to satisfy that requirement by posting a panel of six physicians
      from which an employee may accept services. An employee may make
      one change from a panel physician to another panel physician, and a
      panel physician may refer the employee to a nonpanel physician,
      although that nonpanel physician may not make further nonpanel
      referrals. OCGA § 34-9-201 (b) (1). An employee may also ask the
      Board to order a change of physician or treatment, and if granted the


                                          9
      employer is liable for those expenses. OCGA §§ 34-9-200 (b); 34-9-201
      (e).


      If the employer fails to provide any of the procedures for selection of
      physicians as set forth in subsection (c) of OCGA § 34-9-201, an
      employee may select any physician to render service at the expense of
      the employer.” OCGA § 34-9-201 (f). Further, if an employer terminates
      the employee’s medical benefits, the employee is entitled to see any
      doctor she chooses and make the employer pay for it if she can prove
      she was still injured at that time as a result of the accident.


(Citation and punctuation omitted.) Zheng v. New Grand Buffet, 321 Ga. App. 308,

311 (1) (740 SE2d 302) (2013). “If an employer-approved physician releases an

employee back into the work force as cured, the employer has not adequately met its

duty of providing treatment to the employee if the employee is able to prove that his

subsequent medical problems were related to his work-related injury.” Bel Arbor

Nursing Home v. Johnson, 192 Ga. App. 454 (385 SE2d 315) (1989).

      Here, the record shows that Lane’s authorized treating physicians were Dr.

Heiges and Dr. Kenerly. On November 25, 2009, Dr. Heiges prescribed physical

therapy for Lane and his notes state that he would “see him back for recheck at the

completion of his physical therapy course.” On January 27, 2010, Dr. Heiges

completed a questionnaire for the employer’s attorney that stated, I would anticipate

                                          10
[maximum medical improvement] at next follow-up visit after conclusion of [physical

therapy].” The ALJ noted in its order “that Dr. Heiges discharged the Employee on

February 24, 2010.” While a list of exhibits references a “2/24/10 Report of Dr.

Heiges,” a copy of this medical record does not appear in the record before us, and

it was not mentioned in the Appellate Division’s written decision.

      On March 10, 2010, Dr. Kenerly stated that he agreed with the opinions stated

by Dr. Heiges in the January 27, 2010 questionnaire. On April 13, 2010, Dr. Kenerly

examined Lane and noted that Lane’s last physical therapy visit was March 11, 2010.

Dr. Kenerly informed Lane that in relation to his work injury, “he has had proper

treatment and time to heal. In reference to his injury, I feel he can return to work

without restrictions. He is at [maximum medical improvement]. . . . Weight loss and

proper exercise program could help with his chronic low back pain.” Dr. Kenerly also

noted that he had “reviewed and agree[s] with Dr. Heiges’ notes and his work status

which stated 2/24/10 the patient is released to full work duty.”

      Lane testified in the hearing that Dr. Kenerly told him that “he had done all he

could do for me. . . . He told me I could either learn to live with the pain or find

another line of work.” Lane also testified that before his last appointment with Dr.

Kenerly, Dr. Heiges released him to return to work with no restrictions.

                                         11
      Lane admitted that after his April 2010 appointment with Dr. Kenerly, he never

attempted to see Dr. Kenerly or Dr. Heiges again. He also testified that he made no

attempt to return to work “on account of [his] back.” In July of 2010, he sought

treatment with another doctor recommended to him by his attorney. While the record

contains testimony that Lane’s workers’ compensation benefits ended in March 2010,

a copy of the WC-2 form dated March 1, 2010 that purportedly terminated Lane’s

benefits was never filed below.

      The Appellate Division disagreed with the ALJ’s conclusion that the

authorized physicians had terminated care to Lane, but it relied upon only the

following evidence in support of this conclusion:

      The evidence reflects that upon the Employee’s last visit to authorized
      physician Dr. Bradley Heiges, November 25, 2009, Dr. Heiges
      recommended the Employee return to him for follow-up care following
      the completion of his physical therapy. Dr. Hegies again offered the
      Employee follow-up care following the completion of his physical
      therapy. Dr. Heiges again offered the employee follow-up care following
      completion of physical therapy on January 27, 2011.


Because the evidence relied upon by the Appellate Division is incomplete, misstates

that physical therapy was completed on January 27, 2011 as opposed to January 27,

2010, and the undisputed evidence shows that Lane’s authorized physicians had

                                        12
discharged him as a patient and released him to work without restrictions in April

2010, we must vacate the portion of the superior court’s decision affirming the

Appellate Division’s denial of Lane’s request for payment of unauthorized medical

expenses. See Boaz v. K-Mart Corp., 254 Ga. 707-710 (1) (334 SE2d 167) (1985)

(affirming decisions of ALJ and Board concluding employer was liable for medical

treatment after authorized physician discharged employee as a patient and authorized

a return to work); Vulcan Materials Co. v. Pritchett, 227 Ga. App. 530, 530-532 (2)

(489 SE2d 558) (1997) (employer liable for medical treatment after employer

unilaterally suspended payments when authorized physician released employee to

return to work with no restrictions even though physician noted in medical record that

“he would see [employee] again ‘if he has any change in symptoms’”); Ga. Power Co.

v. Brasill, 171 Ga. App. 569, 569-570 (1) (320 SE2d 573) (1984) (affirming superior

court’s conclusion that ALJ erred in disallowing past medical benefits where the

authorized physician “stated that in his opinion the most recent symptoms were the

result not of the [work] injury but of an underlying chronic condition”). Compare

Zheng, supra, 321 Ga. App. at 309-312 (1) (affirming conclusion of ALJ and Board

that employer was not liable for medical benefits when authorized physician issued



                                         13
prospective work release dependent upon test results and future evaluation and

employee failed to return to authorized physician for scheduled appointment)

        The record also shows, however, that neither the ALJ nor the Appellate

Division addressed whether Lane’s unauthorized medical treatment was related to his

work injury. See Bel Arbor Nursing Home, supra, 192 Ga. App. at 454. We must

therefore remand this case for a determination of that issue and further proceedings

consistent with this opinion.

        Judgment affirmed in part, vacated in part, and case remanded with direction.

Andrews, P. J., Barnes, P. J., Doyle, P. J., Miller, Dillard, McFadden, Ray, Branch

and McMillian, JJ., concur. Phipps, C. J., and Ellington, P. J., concur in judgment

only.




                                          14
