concurring specially in part and dissenting in part.
I fully concur with Division 1 of the majority opinion. I concur with the analysis of Division 2 which finds that an award on the overpayment claim is not subject to the express limitation applicable to change of condition orders contained in OCGA § 34-9-104 (d) (1) under the facts of this case. I write separately on that issue to further explicate its intricacies. However, I dissent from the portion of the analysis and holding of Division 2 of the majority that simply affirms because I would remand the case for a determination of whether or not the employer had been reasonably diligent in investigating this claim.
*729The award on the overpayment claim is not subject to the express limitation applicable to change of condition orders contained in OCGA § 34-9-104 (d) (1) under the facts of this case. Under Bahadori v. Nat. Union Fire Ins. Co., 270 Ga. 203-204 (1) (507 SE2d 467) (1998), the Workers’ Compensation Board’s authority to adjudicate an employer’s overpayment claim is limited to those claims which can be addressed in the context of a change of condition hearing.
Prior to 1978, the Board had no authority to adjudicate claims for reimbursement of overpaid benefits. The purposes of the 1978 amendment to the Workers’ Compensation Act were to encourage judicial economy and to grant authority to the Board, where a change of condition claim is pending, to also adjudicate any overpayment claim which arises in the context thereof. While this overpayment claim arises in the context of this change of condition claim, the overpayment claim itself is not a change of condition claim. Bahadori v. Sizzler No. 1543, 230 Ga. App. 52 (505 SE2d 23) (1997), overruled on other grounds, Bahadori v. Nat. Union Fire Ins. Co., 270 Ga. 203. This case involves a finding by the Board that the claimant had misrepresented facts to the employer, had filed improper multiple claims from which he had received benefits, and was totally lacking in credibility — evidence which authorizes its finding of a change in condition and supports its award on the overpayment claim.
The purpose of the 1978 amendment would be thwarted if employers were limited in their overpayment award in fraudulent claim cases to those sums paid after the last award of benefits, which benefits were obtained by fraud. Where the employer has acted reasonably in investigating the claim and that investigation has been thwarted by claimant’s misrepresentations and failure to disclose, then such employer has a right to recoup all sums wrongfully paid as a result of claimant’s conduct. Under these circumstances, the employer is authorized to controvert the claim as the statute of limitation is tolled by claimant’s conduct. The employer is free to raise all defenses and present all evidence that would have been addressed but for claimant’s conduct. Where the employer’s overpayment claim arises in the context of a change of condition claim the employer is entitled to seek relief through the Board, which is authorized to act under these narrow circumstances. The limitation of OCGA § 34-9-104 (a) (1) applies to a change of condition claim only, not to an overpayment claim based on the fraud of the claimant. The law does not limit the employer’s rights in this regard unless the matter has been settled or in the case of an executed judgment. OCGA § 34-9-104 (b).
The statute of limitation for the filing of a notice to controvert is not tolled as a matter of law based upon claimant’s fraudulent conduct. Whether the employer was diligent in discovering the fraud is a *730fact question, which, when coupled with the fraudulence of claimant’s conduct, determines whether the employer’s right to controvert the claim has been tolled. See Bahadori, 270 Ga. at 206. Fraud which tolls a statute of limitation must be such actual fraud as could not have been discovered by the exercise of ordinary diligence. See Webb v. Lewis, 133 Ga. App. 18, 21 (209 SE2d 712) (1974). Where the fraud of a claimant thwarts an employer’s reasonably diligent investigation, the time within which the employer could controvert the claim is tolled. See Spiva v. Union County, 172 Ga. App. 151 (322 SE2d 351) (1984).
In Bahadori, the employer sought repayment of benefits overpaid based on claimant’s misrepresentations and the fact that he was, in fact, working while receiving workers’ compensation disability payments. The employer sought to controvert the claim based on the tolling of the statute of limitation as a result of the claimant’s misconduct. Our Supreme Court remanded the case for further findings of fact, concluding that the Board had not answered the question: “Did Bahadori’s fraud thwart [the employer’s] original investigation?” Bahadori, 270 Ga. at 206. The Supreme Court held that it must have done so in order to toll the statute of limitation.
In this case, Bahadori claimed falsely that he did not work between the months of September and December 1992, because of his prior injury. Although this misrepresentation may have been sufficient to thwart a reasonably diligent investigation, the board made no findings in this regard. Therefore, ... we remand. . . . “[T]here must be a balancing between the prompt and voluntary initiation of the payment of workers’ compensation benefit [s] to an employee, on the one hand, and the availability, on the other hand, of an opportunity for the employer/insurer to base a notice to controvert upon evidence which the employer/insurer was unable to discover earlier as a result of the employee’s own misrepresentation.”
Id. at 207. See also Carpet Transport v. Pittman, 187 Ga. App. 463 (370 SE2d 651 (1988). It is implicit in Bahadori v. Nat. Union Fire Ins. Co., that the employer would be entitled to the overpayment of the 1992 benefits as awarded upon a showing that Bahadori had thwarted its reasonably diligent investigation. Otherwise, it would make no sense to remand the case for a factual determination if the employer was not entitled to recover a portion of the award as a matter of law without reference to that fact.
Judge Smith’s dissent’s reliance upon Webb v. City of Atlanta, 228 Ga. App. 278 (491 SE2d 492) (1997), is misplaced as to the doc*731trine of res judicata. Webb involved a failure of the City of Atlanta to seek credit in the workers’ compensation proceeding for sums paid to claimant under its disability benefits plan, which it was clearly entitled to do. It was not entitled, however, to later unilaterally assert its rights and reduce the claimant’s benefits after an award had been made to claimant as it did. This Court properly held that the City knowingly failed to timely assert its rights and thereby waived them. There was no claimant misconduct or misrepresentation, and this Court properly applied the doctrine of res judicata under those circumstances because the City was fully aware of the facts at the time of the litigation. The doctrine of res judicata has no application however to a fraudulently obtained award.
It is clear from the order of the administrative law judge that the employers in this case argued that Aldrich “is not worthy of belief and that he has made numerous inconsistent and incorrect statements under oath.” They also argued that, contrary to Aldrich’s position, his injuries resulting from striking a cow in his automobile were “neither serious nor disabling.” Based on these arguments and Aldrich’s admissions, the ALJ found, among other things, that Aldrich accepted workers’ compensation benefits which “he knew he was not entitled to receive in 1991, 1992 and 1994.” The ALJ further stated that, during the hearing, “it was evident that [Aldrich] was being uncooperative, untruthful and evasive.”
Here, Aldrich knowingly received funds he was not entitled to by misrepresenting his injuries and his employment status to his employers. But for these misrepresentations, Aldrich’s employers would not have made these payments to him, as they argued before the ALJ. Whether Aldrich’s employers described his behavior as untruthful, evasive, or not worthy of belief, the underlying gist of their argument was that they had been defrauded. The tribunals below us recognized this fact and appropriately ruled on it. We should, and indeed we must, do the same here.
It is abundantly clear from the record that the employer has maintained, at every opportunity, that Aldrich obtained benefits by falsehoods. On January 16, 1998, a hearing was held before the ALJ in which the employer contended Aldrich’s falsehoods required that the benefits be suspended and that they be allowed repayment for the amounts overpaid. After the hearing, the trial court gave the parties ten days from the receipt of the transcript to file briefs. In the briefs submitted to the ALJ on February 20, 1998, the employer argued that Aldrich’s misrepresentations should allow the employer to obtain the overpayment in benefits paid due to such misrepresentations. The employer specifically listed numerous incidents of misrepresentations, including, but not limited to the following: (1) despite claiming to be disabled, Aldrich worked for the Depart*732ment of Family & Children Services in 1991; (2) despite claiming to be disabled and while applying for Social Security disability benefits, Aldrich worked providing security for Hardee’s in 1992; (3) Aldrich failed to inform the employer about his return to work and did not return money he received as workers’ compensation benefits; (4) despite the fact that Aldrich had injured his feet numerous times during 1992 and 1993 in accidents involving wheelbarrows, concrete blocks and plows, Aldrich asserted at the hearing that the cause of his foot problem was the 1989 injury. And finally, as discussed above, in the ALJ’s order, the AL J makes specific findings of misrepresentations on Aldrich’s part and determines that the employer is entitled to repayment of those benefits which were overpaid.
Whether an overpayment claim which arises in the context of a change of condition claim is of the type which would toll the statute of limitation on an employer’s right to controvert, and thereby authorize repayment without regard to the prior award limitation of OCGA § 34-9-104 (a) (1), depends on whether claimant’s misconduct thwarted the employer’s reasonable investigation. Such right is born out of the evidence presented in the change of condition hearing on the case based on the factual contentions and proof. It is not necessary that the overpayment claim be separately enumerated like a count in an indictment. Its existence is intrinsic in the contentions and facts of the change of condition case. Here, the employer clearly contended and the Board determined that the claimant had misrepresented facts and had knowingly sought and received benefits to which he was not entitled. This proven contention was the basis for the overpayment award which the employer received and to which it would not have been entitled but for its overpayment claim and proof thereof.
Bahadori, 270 Ga. 203, cannot be disregarded because it was a “statute of limitation case relying on OCGA § 34-9-104 (d) (2)” and therefore not applicable to this case. Bahadori v. Nat. Union Fire Ins. Co. is no more confined to statute of limitation cases than Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) is confined to premises liability cases. Our Supreme Court addressed in great detail therein numerous alternative cases in which this Court had dealt with some of the procedures herein addressed. I have followed the very procedure prescribed by our Supreme Court to address the underlying, unanswered question, “Did Aldrich’s fraud thwart the employer’s reasonable investigation?” There is no more germane case than Bahadori v. Nat. Union Fire Ins. Co.
Therefore, I would affirm that portion of the award based solely on a change of condition from the date of the current award to the employer through the date of the last award on May 3, 1991, under the limitations of OCGA § 34-9-104 (a) (1), pursuant to OCGA § 34-9-*733104 (d) (1). I would further remand the case for a determination of whether or not the employer had been reasonably diligent in investigating this claim, and, if so, did the claimant’s misrepresentations thwart such investigation sufficiently to toll the statute of limitation on employer’s right to controvert the claim. If so, then the employer would be entitled to recover on the overpayment claim, which would include the additional sums for the period of February 8, 1991, the date the Board determined the claimant no longer qualified for benefits from the 1989 injury, through May 3, 1991, without being subject to the previously described limitations for the reasons outlined above.