dissenting.
I dissent because I believe we should modify the rule set forth in Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648 (324 SE2d 194) (1984), and adopt a more balanced construction of OCGA § 34-9-221.
In Rayburn, supra, as in the present case, the employer did not file a notice to controvert under OCGA § 34-9-221 (d) within 21 days after learning of the alleged compensable injury. Instead, the employer paid benefits accrued pursuant to OCGA § 34-9-221 (b), then subsequently filed a notice to controvert under § 34-9-221 (h). Rayburn, supra at 648-649. The evidence in Rayburn, supra, also showed, just as Hamby contends in the present case, that the employer failed to pay a late payment penalty which was due pursuant to OCGA § 34-9-221 (e) along with the accrued benefits. We held that “if an employer has paid all of the accrued income benefits without an award, including penalties provided for any late payment, and continues to make the periodic benefit payments pursuant to OCGA § 34-9-221 (e), the employer is entitled to controvert the worker’s right to compensation under § 34-9-221 (h).” Id. at 649 (1). We concluded that, since the employer in that case had failed to pay the penalty, the notice to controvert was invalid. Id. at 650.
In so holding in Rayburn, supra, we recognized that OCGA § 34-9-221 provides for two distinct situations in which an employer may controvert payment of benefits after an employee claims a compensable injury. Id. at 649. In the first situation, an employer which quickly determines it has grounds to controvert payment may do so under subsection (d) of the statute by filing a notice to controvert within 21 days after knowledge of the alleged compensable injury. In the second situation, where compensation is not initially controverted under subsection (d) and payments are due without an award, the employer may later controvert and suspend payments under subsection (h) of the statute, which provides that: “Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensa*121tion.” In considering these provisions in Rayburn, supra, we found that “the legislative intent behind OCGA § 34-9-221 was to minimize the hardship on the injured worker by requiring the employer either to act quickly when it knows a claim is controvertible, so as to expedite final resolution of the matter, or to pay compensation while investigating the matter more closely.” Id. at 649 (1). In Carpet Transport v. Pittman, 187 Ga. App. 463, 467 (370 SE2d 651) (1988), we further stated that subsection (h) of the statute “is clearly intended to provide some form of protection to the employee’s right to continued receipt of the compensation. . . .” (Emphasis in original.)
Accordingly, under OCGA § 34-9-221 an employer which does not quickly controvert payment pursuant to subsection (d) must commence compensation payments without an award and continue to make all payments due under the statute until the employer controverts and suspends payments under subsection (h). In Rayburn, supra, we construed OCGA § 34-9-221 as not only requiring such payments be made by the employer but that all such payments be made as a precondition to the valid filing of any notice to controvert under subsection (h). This requirement, however, can have the effect of permanently foreclosing an employer’s right to controvert on the grounds originally asserted in the notice to controvert.
Employers who file a notice to controvert under OCGA § 34-9-221 (h), where compensation is paid without an award, cannot know in advance of filing in every case whether a claim may subsequently be made that all of the compensation requirements of OCGA § 34-9-221 have not been satisfied. Even where an employer attempts in good faith to comply with the payment provisions of OCGA § 34-9-221 prior to filing the notice to controvert, the notice is subject to subsequent attack in defenses raised by the employee during the hearing process that the employer failed to pay the full amount of all income benefits or penalties due under OCGA § 34-9-221 (b) and (e) prior to filing the notice to controvert. This issue can arise if the employee, for example, later disputes whether the employer accurately computed the average weekly wage due to be paid, or disputes whether a weekly installment was timely made under the mailing provisions of OCGA § 34-9-221 (b), or disputes whether payment was made in the proper form required under OCGA § 34-9-221 (a). An employer may not become aware of these claims until they are revealed in prehearing discovery or raised later at the hearing before the ALJ. At that point, months may have elapsed from the time the notice to controvert was filed. Under the rule established in Rayburn, supra, if it is subsequently determined that the employer did not fully comply with all the requirements of OCGA § 34-9-221 prior to filing the. notice to controvert, then the notice is considered invalid and the employer has no right to controvert until all the requirements are *122satisfied and the employer files another notice to controvert. If the original notice to controvert was filed under OCGA § 34-9-221 (h) more than 60 days after the due date of first payment of compensation, then the right to compensation can be controverted only on the grounds of a change in condition or newly discovered evidence. In that case, the effect of invalidating the original notice under Rayburn, supra, would be to require the employer to pay any unpaid compensation or penalties found due and then file another notice to controvert, which could once again be brought on the same grounds asserted in the original notice. However, if the original notice to controvert was filed under OCGA § 34-9-221 (h) within 60 days of the due date of first payment of compensation, the employer’s right to controvert is not limited to a change in condition or newly discovered evidence, but may be asserted on any available ground. In that case, if the original notice to controvert asserts a ground not available to the employer after the expiration of the 60-day period, the effect of invalidating the original notice under Rayburn, supra, which in practice would virtually always occur after the expiration of the 60-day period, is to permanently foreclose the employer’s right to controvert on the ground originally asserted. The present case is a good example.
In the present case, the employer controverted payment under OCGA § 34-9-221 (h) prior to the expiration of the 60-day period on the basis of evidence that the injury suffered by the employee occurred at home and did not arise out of or in the course of employment. Relying on Rayburn, supra, the superior court eventually held that the notice to controvert on this basis was invalid because the employer had not paid a penalty due under OCGA § 34-9-221 (e) prior to filing the notice. This ruling came after the issue was raised before the ALJ and long after the expiration of the 60-day period set forth in OCGA § 34-9-221 (h). Since the 60-day period has expired, and the original ground for controversion asserted by the employer is not a change of condition and does not qualify as evidence newly discovered after the expiration of the 60-day period, applying Rayburn, supra, effectively prohibits the employer from pursuing a potentially valid basis to controvert even after paying the penalty.
Section 34-9-221 does not explicitly require the construction we gave it in Rayburn, supra. The employer’s right to controvert under subsection (h) of § 34-9-221 is granted “[wjhere compensation is being paid without an award. . . .” Although this language makes clear that an employer cannot proceed on the merits of a controversion claim without paying all compensation due, including penalties, it does not demand a conclusion that the notice to controvert be considered invalid when filed if all the compensation requirements of OCGA § 34-9-221 have not been fully satisfied at that time. The con*123struction we gave the statute in Rayburn, supra, was consistent with the then existing rule that the Workers’ Compensation Act be construed liberally in favor of the rights of the claimant except where such a construction was strictly prohibited by the terms of the statute. Subsequent Injury Trust Fund v. Lumley Drywall, 200 Ga. App. 703, 704-705 (409 SE2d 254) (1991). However, the Workers’ Compensation Act was amended in 1994 to provide that it “shall be liberally construed only for the purpose of bringing employers and employees within the provisions of this chapter and to provide protection for both. . . . The provisions of this chapter shall be construed and applied impartially to both employers and employees.” OCGA § 34-9-23.
In light of the new balanced construction of the Workers’ Compensation Act required by OCGA § 34-9-23, it is appropriate to reexamine Rayburn, supra, and apply OCGA § 34-9-221 in a manner that balances the interests of the employee and the employer. Accordingly, we should conclude that a notice to controvert filed pursuant to OCGA § 34-9-221 (h) is valid even if an issue exists at the time of filing as to whether the employer has paid all benefits and penalties due under OCGA § 34-9-221. If such an issue arises upon the filing of the notice to controvert, it should be addressed and resolved and payment, if any is determined due, should be immediately tendered prior to a ruling on the merits of the employer’s notice to controvert. On one hand, this construction of OCGA § 34-9-221 gives effect to the legislative intention that the employee’s right to continued receipt of compensation without unwarranted delay be protected while an employer investigates the alleged injury and then controverts payment of compensation under subsection (h). Pittman, supra at 466-467. On the other hand, under this construction of OCGA § 34-9-221, an employer which determines grounds for controverting payment after expiration of the 21-day period of subsection (d) is better protected in its right to contest payment of compensation by filing a notice to controvert pursuant to subsection (h) and suspending further payments. To the extent Rayburn, supra, conflicts with this balanced application, it should be overruled.
I do not believe that the majority’s concern that this construction of the statute will encourage employers to delay paying compensation is justified. An employer which has not discovered any ground to controvert during the 21-day period of OCGA § 34-9-221. (d) has no incentive to withhold compensation due and incur mounting penalties on the chance that it may later discover a ground to controvert under OCGA § 34-9-221 (h). Moreover, as we noted in Raines & Milam v. Milam, 161 Ga. App. 860, 862 (289 SE2d 785) (1982), the Workers’ Compensation Act provides additional incentive for employers to make timely payments of all compensation due to the employee *124by imposing attorney fee sanctions under OCGA § 34-9-108 (b) (2) against employers which fail to comply with the compensation provisions of OCGA § 34-9-221.
Decided December 5, 1996 Reconsideration denied December 20, 1996 Saveli & Williams, Task J. Van Dora, Grant G. Morain, Steven R. Thornton, for appellants. James E. Greene, for appellee.Accordingly, I would retroactively apply this new construction of OCGA § 34-9-221 (see Gen. Motors Corp. v. Rasmussen, 255 Ga. 544, 545-546 (340 SE2d 586) (1986); Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (300 SE2d 673) (1983)), reverse the judgment of the superior court, and remand the case with directions that it be recommitted to the Board for review and taking of additional evidence, if necessary, in accordance with the revised construction of the statute. If it was determined that the employer owed a penalty under OCGA § 34-9-221 (e) when the notice to controvert was filed, then upon tender of payment the merits of the employer’s notice to controvert would become ripe for consideration, along with a determination as to the employer’s liability for further compensation and whether there was any overpayment of benefits.
I am authorized to state that Presiding Judge Birdsong joins in this dissent.