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AT&T v. Barnes

An employer waived its statute of limitation defense to its retired employee's request for a hearing regarding the resumption of her benefits because the employer failed to raise its defense at the first hearing.

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In this case involving a change in condition claim for certain workers’ compensation benefits, AT&T and Gates McDonald collectively “AT&T” appeal the superior court’s holding1 that workers’ compensation benefits payable to Mildred Ware Barnes had been improperly suspended by AT&T. On appeal, AT&T contends that Barnes’ claims were barred by the applicable two-year statute of limitation, OCGA § 34-9-104 b. Because AT&T failed to timely raise its statute of limitation defense, we affirm.

The relevant facts of record show that Barnes was an employee of AT&T who was injured in an accident while at work on February 1, 1993. Although Barnes returned to work for a short period of time following the accident, she eventually stopped going and claimed that she was no longer physically able to perform the duties of her job. At that time, AT&T began paying workers’ compensation temporary total disability benefits to Barnes. Sometime thereafter, payments to Barnes under AT&T’s workers’ compensation program were replaced with payments made under its short term disability plan. Barnes received notice of this modification in a letter dated November 10, 1994. Payments under this short term disability plan continued until Barnes voluntarily retired on August 11, 1996, when, pursuant to a written request, Barnes began collecting a retirement pension. Since the date of her retirement, Barnes has received no sources of income other than her pension and SSDI benefits.

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