Atlanta Family Restaurants, Inc. v. Perry

434 S.E.2d 140, 209 Ga. App. 581, 93 Fulton County D. Rep. 2978, 1993 Ga. App. LEXIS 942

• Court: Court of Appeals of Georgia
• Decided: July 16, 1993
• Docket: A93A0491
• Status: Published

Opinions

Cooper, Judge.

In this workers’ compensation case, an administrative law judge (ALJ) issued an award terminating appellants’ obligation to pay disability benefits to appellee but directing appellants to pay appellee’s chiropractic costs. Appellee timely appealed the award to the full Board pursuant to OCGA § 34-9-103. Appellants did not cross-appeal or file a separate appeal. However, they submitted a brief in which they argued not only that the ALJ correctly terminated their obligation to pay disability benefits, but also that the ALJ erred in ordering them to pay appellee’s chiropractic costs. Appellee then filed a “Dismissal of Appeal,” and the Board dismissed the appeal despite appellants’ written objection. Appellants timely appealed the dismissal to the superior court. When that court failed to hear the case within 60 days, the Board’s dismissal was affirmed by operation of law, see OCGA § 34-9-105 (b), and we granted appellants’ subsequent application for discretionary appeal.

An appeal to the Board “opens the entire case as a de novo proceeding” in which either party can raise any issue involved in the case; the adverse party need not cross-appeal. Ga. Dept. of Revenue v. Hughes, 99 Ga. App. 127, 128 (1) (108 SE2d 184) (1959). As a result, we have held that the party filing the appeal cannot withdraw it without the consent of the adverse party. Rose City Foods v. Usry, 86 Ga. App. 307 (1) (71 SE2d 649) (1952). The Board therefore erred in dismissing the appeal over appellants’ objection, and the dismissal should not have been affirmed by the superior court.

Judgment reversed.

McMurray, P. J., concurs. Beasley, P. J., concurs specially.