dissenting.
If the ruling in this case depended solely upon “doing the right thing,” I would have no hesitation in agreeing with the majority that Aldrich ought to, injustice, be required to return every penny that he obtained through his wrongful conduct. But we are bound by the clear mandate of OCGA § 34-9-104 (d) (1), limiting the retroactive application of a modified award:
Subject to the limitation in subsection (a) of this Code section that a change of condition was a change which occurred after the date on which the wage-earning capacity, physical condition, or status of the employee was last established by award or otherwise, the award or order contained in the final decision entered by the administrative law judge or the board shall be effective as of the time of change in condition as found by the administrative law judge or board, notwithstanding the retroactive effect of the award or order.
(Emphasis supplied.)
Under this statutory provision, the board was authorized to enter an award “effective as of the time of the change in condition as found by the administrative law judge or board,” OCGA § 34-9-104 (d) (1), but was not authorized to find a change of condition effective before the date of Aldrich’s last award. “An unappealed award of total disability payments is res judicata as to the existence of such disability and the compensation due thereunder.” (Citation, punctuation and emphasis omitted.) Webb v. City of Atlanta, 228 Ga. App. 278, 280 (1) (491 SE2d 492) (1997).
The majority contends that Bahadori v. Nat. Union Fire Ins. Co., 270 Ga. 203 (507 SE2d 467) (1998), disposes of this clear statutory provision. Bahadori addresses the power granted the State Board of Workers’ Compensation under OCGA § 34-9-104 (b) to order repayment of income benefits in the context of a change of condition hear*734ing. But the express limitation on a retroactive award provided by the legislature in OCGA § 34-9-104 (d) (1) was never raised or addressed in Bahadori. Moreover, it was inapplicable there. The 1992 claim as to which the employer sought repayment was never controverted but simply paid by the employer. Id. at 203. Issue was never joined, and the “wage-earning capacity, physical condition, or status of the employee” was never “established by award or otherwise” within the meaning of OCGA § 34-9-104 (d) (1). In contrast, this case involves a prior award of the board which by the statute’s express terms imposes a limit on appellees’ recovery.
It is certainly true that Aldrich’s conduct was both wrongful and fraudulent. But Bahadori provides no support for treating this case as a claim of fraud. First, Bahadori addressed the issue of fraud solely in the clearly permissible context of tolling a statute of limitation, not as somehow contradicting the plain language of the controlling law. Second, the claim of fraud was properly raised by the employer in the course of the litigation. Id. at 205 (3).
Here, in contrast, although the employers argued in their brief before the appellate division that Aldrich’s fraudulent conduct rendered his testimony not credible and supported the ALJ’s finding of no disability, they did not assert fraudulent conduct as a ground in support of their request for reimbursement under OCGA § 34-9-104. Neither employer raised fraud as a defense to Aldrich’s claim or moved to set aside the earlier findings for fraud.
The ALJ and the appellate division based their decisions entirely on the change of condition and reimbursement provisions of the workers’ compensation statutes and never addressed the issue of fraud. Furthermore, the employers’ brief before this court does not raise the issue of fraud. But when fraud is alleged, it must be pled with particularity. OCGA § 9-11-9. Mere references to fraudulent conduct will not suffice when a litigant has failed to assert a cause of action based upon fraud in the trial court. Moore v. Bank of Fitzgerald, 225 Ga. App. 122, 127 (2) (d) (483 SE2d 135) (1997). This court has recognized that “common sense and equity require” that the Civil Practice Act control some procedural aspects of workers’ compensation litigation. Wade v. Harris, 210 Ga. App. 882, 885 (1) (437 SE2d 863) (1993).
The fraudulent conduct of Aldrich, while clearly wrongful, does not constitute a “change in condition” that can be addressed by OCGA § 34-9-104. Even if we assume for the sake of argument that Aldrich’s moral condition underwent some alteration for the worse during the events leading up to this appeal, such an event is not within the purview of the Workers’ Compensation Act.
*735Decided December 20, 1999 Reconsideration denied January 7, 2000 Larry N. Hollington, for appellant. Drew, Eckl & Farnham, Daniel C. Kniffen, Terrence T. Rock, for appellees.A change in condition is defined in OCGA § 34-9-104 (a) as a change in the wage-earning capacity, physical condition, or status of an employee, which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee was last established by award or otherwise.
(Punctuation omitted.) Maloney v. Gordon County Farms, 265 Ga. 825, 826 (462 SE2d 606) (1995).
The commission of a fraud on the employer or insurer is obviously not a “change in condition” within the meaning of the statute. The statute does not contemplate a remedy for such conduct, and in this case a retroactive change of condition finding is clearly barred by the express limitation of OCGA § 34-9-104 (a) (1).
But Georgia law has clearly established another remedy, as many cases have held that “the proper way to challenge an award of the Board on the basis that the award was obtained through fraud or misrepresentation is to bring a motion to set aside pursuant to OCGA § 9-11-60 (d) in the superior court.” Hall & Sosebee Trucking Co. v. Smith, 201 Ga. App. 282, 283 (410 SE2d 784) (1991). Nothing prevents appellees from exercising their other remedies under Georgia law. Bahadori itself recognizes that “[i]t is not inconsistent to allow some claims to go before the Board and some claims to continue to be filed in civil courts.” Id. at 205 (2). Those alternative remedies are clearly set out in Hall, supra, and other decisions of this court. See, e.g., Wade, supra; Griggs v. All-Steel Bldgs., 209 Ga. App. 253 (433 SE2d 89) (1993). Appellees failed to employ the recognized and legally proper method for challenging an award they allege was obtained through fraud, and accordingly they are limited to the scope of the particular statutory remedy they sought here.
For these reasons, I respectfully dissent.
I am authorized to state that Judge Barnes joins in this dissent.