Bahadori v. Sizzler 1543

Pope, Presiding Judge.

Resa Bahadori appeals from the decision of the State Board of Workers’ Compensation, requiring him to reimburse his former employer, Sizzler #1543 (Sizzler) and Sizzler’s insurer, National Union Fire Insurance Company (National Union), for workers’ compensation benefits paid to him. The basis for the award was that Bahadori improperly received workers’ compensation income benefits from Sizzler and National Union while he was a salaried employee of another company.

On July 22, 1989, while he was employed as a manager at Sizzler, Bahadori was shot in the shoulder area during an armed robbery of the restaurant. Sizzler paid Bahadori’s claim for workers’ compensation benefits. See OCGA § 34-9-221 (a). When Bahadori recovered, he moved to South Carolina and went to work for S & S Cafeterias. Sizzler stopped paying Bahadori benefits after he recovered and went to work for S & S.

Two years later, in 1992, Bahadori filed a claim for benefits against Sizzler, alleging that due to his injury at Sizzler, he was unable to work for S & S from September 8, 1992, through December 12, 1992. Sizzler did not controvert this claim and paid it in early 1993.

Later in 1993, Bahadori filed another claim for benefits based upon a change of condition, seeking temporary total disability benefits for September 1, 1993, through December 12, 1993, and medical expenses. Sizzler investigated this claim and determined that although it had paid Bahadori benefits for his earlier claim covering September through December 1992, Bahadori was actually working for S & S and receiving a salary during that time.

Thereafter, Sizzler requested a hearing to controvert Bahadori’s claim and to seek reimbursement of the income benefits paid from September through December 1992. Prior to the hearing, Bahadori withdrew his 1993 claim for resumption of income benefits, but his claim for medical expenses and Sizzler’s overpayment claim remained pending.

*53Following a hearing in the matter, the ALJ determined that Bahadori had been working for and receiving a sálary from S & S in 1992 when he made his claim for temporary total disability benefits against Sizzler and therefore had not been entitled to the 1992 benefits Sizzler paid him in early 1993. The appellate division upheld that determination, and on appeal to the superior court the matter was affirmed by operation of law. This discretionary appeal followed.

1. Bahadori contends that the State Board may adjudicate overpayment claims only in change in condition cases, and that the State Board thus lost jurisdiction to consider Sizzler’s overpayment claim after he withdrew his claim for income benefits based on a change in condition. We reject that contention.

The 1978 amendment to the Workers’ Compensation Act, currently codified at OCGA § 34-9-104 (d) (2), first authorized the State Board to adjudicate claims for reimbursement of overpaid benefits. Before that amendment, the State Board had no jurisdiction to consider such claims, and the only recourse an employer/insurer had was to file a civil action for money had and received. See Ga. Cas. &c. Co. v. Randall, 162 Ga. App. 532 (292 SE2d 118) (1982); Seaboard Fire &c. Ins. Co. v. Smith, 146 Ga. App. 893 (247 SE2d 607) (1978). The effect of the 1978 amendment was “to economize on the number of actions necessary to finally resolve all the issues presented in an overpayment situation by eliminating the need for an insurer (or employer) to bring a second action in a different forum in order to recover the amount of the overpayment.” Randall, 162 Ga. App. at 535.

It is undisputed that OCGA § 34-9-104 authorizes the State Board to adjudicate overpayment claims that arise in change in condition cases. As Sizzler’s overpayment claim arose out of Bahadori’s change in condition case, we hold that Bahadori’s withdrawal of his claim for reinstatement of income benefits did not operate to extinguish the State Board’s jurisdiction to consider the overpayment issue.

Further, the State Board’s power to adjudicate overpayment claims is not limited to change in condition cases in any event. As indicated by its heading, OCGA § 34-9-104 generally governs the modification of an award contained in a prior decision in the event of a change in condition. But the descriptive heading of a Code section does not constitute part of the statute and does not control the construction or interpretation of the statute. Legum v. Crouch, 208 Ga. App. 185 (430 SE2d 360) (1993).

In Randall, 162 Ga. App. at 534, we held that the 1978 amendment “extended the Board’s jurisdiction to include the power to adjudicate the rights and liabilities of the parties as to repayment of income benefits where the Board has determined that overpayments *54have been made.” And in Spiva v. Union County, 172 Ga. App. 151 (322 SE2d 351) (1984), where the employer controverted a claim based on newly discovered evidence after paying benefits for 23 months, the State Board ordered the employee to pay back over $22,000 in benefits, and we affirmed the award.

Neither Randall nor Spiva limited the State Board’s power to adjudicate overpayments under OCGA § 34-9-104 (d) to change in condition cases. Spiva, in particular, emphasized that the employer had not shown a change in condition.

Although an overpayment claim may arise in the context of a change in condition case, the overpayment claim itself is not a change in condition case. OCGA § 34-9-104 (d), which authorizes the State Board’s adjudication of overpayment claims, is not tied to OCGA § 34-9-104 (b), which authorizes modification of a prior decision based on a change in condition.

The placement of the 1978 amendment authorizing adjudication of overpayment claims in a Code section generally concerning modification of awards in the event of a change in condition does not suggest an intent to limit the State Board’s jurisdiction to overpayment claims in change in condition cases. As the undisputed legislative intent of the 1978 amendment was to economize the number of actions necessary to resolve all overpayment issues, it is unlikely the legislature meant to only halfway accomplish its intent.

Limiting the State Board’s power to hear overpayment claims to change in condition cases would frustrate that legislative intent. If such a limitation existed, cases involving overpayments attributable wholly or even partially to reasons other than a change in condition, and cases involving overpayments based on a change in condition that occurred more than two years before the employer asserted the claim, would often require proceedings before both the State Board and the superior court in order to resolve all overpayment issues. Cases involving overpayment of medical benefits would always require civil actions. Such consequences would be inconsistent with the legislative intent behind OCGA § 34-9-104 (d) (2).

In summary, as determinations of overpayment of workers’ compensation benefits involve the application of workers’ compensation law, the State Board is particularly qualified for that function. And we hold that OCGA § 34-9-104 (d) (2) authorizes the State Board to adjudicate all overpayment issues.

2. We also reject Bahadori’s contention that Sizzler’s overpayment claim was barred because it was not asserted within the two-year limitation period set forth in OCGA § 34-9-104 (b).

OCGA § 34-9-104 (b) establishes a two-year limitation period for modification of a prior award based on a change in condition. But as OCGA § 34-9-104 (d) (2), which authorizes the State Board to hear *55overpayment cases, is not tied to OCGA § 34-9-104 (b), the two-year limitation period is inapplicable. Overpayment claims are in the nature of an action for money had and received. Randall, 162 Ga. App. at 534. The statute of limitation for such a civil action is four years. OCGA § 9-3-25; Macomber v. First Union Nat. Bank of Ga., 212 Ga. App. 57 (441 SE2d 276) (1994). We hold that the four-year limitation period likewise applies to overpayment claims before the State Board.

Although OCGA § 34-9-104 (d) (2) empowers the State Board to decide overpayment cases, and although the State Board may be the preferred forum for these claims in light of its expertise in workers’ compensation law and the interests of judicial economy, there is no general prohibition against pursuing instead a civil action for money had and received.

Because an employer may still pursue a civil action for money had and received, for which a four-year limitation period applies, it would be anomalous to apply a two-year limitation period in an administrative proceeding to recover an overpayment of benefits. In authorizing the State Board to adjudicate overpayment claims, the legislature intended to place the entire range of such cases and issues before the State Board.

Moreover, even if the two-year limitation period set forth in OCGA § 34-9-104 (b) applied to this case, Bahadori’s fraud in requesting benefits during a time period in which he was working tolled the statute of limitation. Spiva, 172 Ga. App. at 152. As pointed out by both the ALJ and the appellate division, because Sizzler did not discover Bahadori’s fraud until 1994, its overpayment claim filed in February 1995 was timely in any event.

3, Bahadori next contends that the State Board’s award violates his due process rights. However, his argument addresses itself to a statute of limitation or laches defense. As we have determined that Sizzler’s overpayment claim was asserted timely, Bahadori’s contention is without merit.

4. Bahadori enumerates as error the Board’s action in referring his case to the Workers’ Compensation Fraud Unit for investigation. He claims that because the fraud unit was not established until three years after his alleged fraud occurred, the unit cannot investigate his case. Nothing in OCGA § 34-9-24 supports this contention; Bahadori cites no authority for his position; and we can find nothing that requires such a result. Therefore, the Board did not err in its referral of the matter to the fraud unit.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Beasley, Johnson, Smith and Ruffin, JJ, concur. McMurray, P. J., Blackburn and Eldridge, JJ, concur in part and dissent in part.