Footstar, Inc. v. Liberty Mutual Insurance

*452CARLEY, Justice,

dissenting.

The dispositive issue in this case is which insurer, Travelers Insurance Company (Travelers) or Liberty Mutual Insurance Company (Liberty Mutual), is responsible for paying workers’ compensation income benefits to Felicia Stevens. In 1999, she was injured in the course of her employment with Footstar, Inc. (Footstar). At that time, Travelers was the workers’ compensation carrier for Footstar. Ms. Stevens did not quit working as the result of her injury, and she received only medical benefits from Travelers. In 2001, Liberty Mutual became Footstar’s workers’ compensation carrier. In January of the following year, Ms. Stevens became unable to continue to perform her job, and she applied for workers’ compensation income benefits. The Administrative Law Judge (ALJ) concluded that she suffered a fictional “new accident” on the last day she was able to work and that Liberty Mutual was, therefore, responsible for her income benefits. However, the Appellate Division of the State Board of Workers’ Compensation (Board) reversed, finding that Ms. Stevens experienced a “change in condition,” not a “new accident,” and that Travelers was liable for the income benefits. The Court of Appeals affirmed that award in Footstar, Inc. v. Stevens, 275 Ga. App. 329 (620 SE2d 588) (2005), and today a majority of this Court affirms the Court of Appeals. In my opinion, however, the ALJ was correct, and Liberty Mutual is the carrier that bears responsibility for the income benefits payable to Ms. Stevens for the fictional “new accident” she suffered in January of 2002. Therefore, I dissent.

“ ‘A claim for a “change of condition” is a claim for additional compensation under the original award.’ [Cit.]” (Emphasis in original.) Northbrook Property & Cas. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988). Ms. Stevens never sought and received any previous income benefits for her job-related injury, so, asamatter of law, this case cannot constitute her “change in condition” claim for such benefits. Until she sought income benefits, she received only medical benefits. However, the law is clear “that medical treatment of a compensable injury in a medical only claim is not subject to [OCGA § 34-9-104,] the change of condition statute. . . .” Wier v. Skyline Messenger Svc., 203 Ga. App. 673, 675 (2) (417 SE2d 693) (1992). If a “medical only” claim is not subject to OCGA § 34-9-104, that statute is applicable only to claims for additional income benefits.

The conclusion that OCGA § 34-9-104 does not apply in cases, such as this, which involve an initial claim for income benefits is apparent from the clear and unambiguous wording of the statute itself.

*453The [B]oard on its own motion may propose or any party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided that the prior decision of the [B]oard was not based on a settlement. . . . (Emphasis supplied.)

OCGA § 34-9-104 (b). Notwithstanding this express language, the majority, as did the Court of Appeals, relies on subsection (a) (1) of the statute, which defines a “change in condition” and, in so doing, does not refer to the type of compensation that the claimant previously received. However, since that subsection merely defines “change in condition” generally, there is no reason why it should set forth the specific circumstances in which an award based on that definition would be authorized. Those substantive provisions appear in subsection (b) which, in addition to the wording quoted above clearly indicating that an initial award of income benefits cannot be based upon a “change in condition,” also includes a limitations period that is measured from “the date [of] the last payment of income benefits. . . .” (Emphasis supplied.)

In construing statutes, all words are to be given their “ordinary signification.” OCGA § 1-3-1 (b). “ ‘It is a well-established principle that a statute must be viewed so as to make all its parts harmonize and to give a sensible and intelligent effect to each part.’ [Cit.]” Vollrath v. Collins, 272 Ga. 601, 603-604 (2) (533 SE2d 57) (2000). When those rules of statutory interpretation are applied to OCGA § 34-9-104, it is apparent that subsection (b) is the controlling provision as to when a claim for a “change in condition,” as defined in subsection (a) (1), can be brought. Under the clear and unambiguous terms of that controlling provision, a “change in condition” award cannot be based upon an initial claim for income benefits, and must be one which seeks the modification of a prior decision regarding income benefits.

The majority cites Liberty Mut. Ins. Co. v. Bray, 148 Ga. App. 868 (2) (253 SE2d 209) (1979) as authority for a contrary interpretation of OCGA § 34-9-104. In that case, however, the employee’s claim arose from an injury that occurred before the 1978 amendment to the statute. Decisions subsequent to Bray established that the preamendment statute was the controlling authority as to such claims. Hart v. Owens-Illinois, 250 Ga. 397 (297 SE2d 462) (1982); Georgia-Pacific Corp. v. Sanders, 171 Ga. App. 799, 801 (1) (320 SE2d 850) (1984). Therefore, notwithstanding that Bray, supra, may have cited OCGA§ 34-9-104 “as amended through Ga. L. 1978, pp. 2220, 2233,” the statute which actually was applicable in that case was “the one in *454existence prior to the 1978 amendment. . . . [Cit.]” Georgia-Pacific Corp v. Sanders, supra. Under the pre-1978 version of OCGA § 34-9-104 applicable in Bray, the payment of medical expenses did constitute a payment of workers’ compensation. See Chevrolet Div., GMC v. Dempsey, 212 Ga. 560 (93 SE2d 703) (1956); Standard Acc. Ins. Co. v. Skinner, 118 Ga. App. 288 (163 SE2d 321) (1968). However, “[i]t is noteworthy that Standard Accident has been effectively overruled by the 1978 amendment to OCGA § 34-9-104. In its present form, the statute clearly specifies that the application must be filed within two years ‘of final payment of income benefits. . . .’ [Cit.]” Georgia-Pacific Corp. v. Sanders, supra. If Standard Acc. Ins. Co. has been obviated as authority by the 1978 amendment to OCGA § 34-9-104, then I submit that other similar decisions, including Bray, which address claims for pre-1978 injuries do not apply to a case, such as this, which involves a claim under the statute as it presently exists. Accordingly, I respectfully suggest that the majority’s reliance on Bray is misplaced. The holding in that case that medical expenses for a pre-1978 injury constituted workers’ compensation for “change in condition” purposes was correct, but the statutory authority cited for that proposition was not. Insofar as Ms. Stevens’ 1999 injury is concerned, OCGA § 34-9-104 as amended in 1978 is controlling.

The majority correctly notes that the Workers’ Compensation Act should be construed liberally to achieve its humanitarian purpose. Nevertheless, the Act is still a statute and, as such, must be construed in accordance with the applicable rules of construction. “Where the language of the statute is clear, unambiguous, and does not lead to any absurd or impractical consequences, this Court is prohibited from construing the statute differently than the terms of the statute. [Cit.]” Aldrich v. City of Lumber City, 273 Ga. 461, 464 (542 SE2d 102) (2001) (construing OCGA§ 34-9-104, the “change in condition” statute). That the interpretation given to OCGA § 34-9-104 by the Court of Appeals and now by a majority of this Court violates the applicable rule of statutory construction, as well as the principle of stare decisis, has been recognized by the commentators, who have noted that in Footstar, Inc. v. Stevens, supra, “the Court of Appeals appears to have disturbed what was thought to be settled law in regard to change of condition. . . . [I]t seems quite a departure from established law.” Hiers and Potter, Ga. Workers’ Comp. Law & Practice § 23-9 (2006 Pocket Part). Moreover, the humanitarian purpose of the Workers’ Compensation Act is not implicated by this case, since there is no question that Ms. Stevens is entitled to income benefits for her job-related injury, and the only disputed issue is which insurance carrier is responsible for those benefits. The humanitarian purpose of the Act was fully served when the ALJ, in accordance with the applicable principles of workers’ compensation law, found that Ms. *455Stevens suffered a fictional “new injury” on the day that she was no longer able to perform her job. See Blackwell v. Liberty Mut. Ins. Co., 230 Ga. 174 (196 SE2d 129) (1973). Since Liberty Mutual was the carrier on the date that Ms. Stevens suffered that fictional “new accident,” it bears responsibility for the income benefits. Thus the Appellate Division wrongly reversed the ALJ’s award, the Court of Appeals thereafter erred in affirming the Appellate Division, and, today, the majority incorrectly affirms the Court of Appeals.

Decided November 20, 2006 Reconsideration denied December 15, 2006. Shivers & Associates, Robert K. Hardeman, Edwin G. Russell, Jr., for appellants. Edward E. Boshears, Richter, Head, Shinall & White, Bert J. Slotkin, for appellees. I am authorized to state that Justice Melton joins in this dissent.