Borden, Inc. v. Holland

442 S.E.2d 916, 212 Ga. App. 820, 94 Fulton County D. Rep. 1463, 1994 Ga. App. LEXIS 405

• Court: Court of Appeals of Georgia
• Decided: April 1, 1994
• Docket: A93A1900
• Status: Published

Opinions

Cooper, Judge.

We granted this discretionary appeal to determine whether the superior court erred in reversing the full board’s denial of benefits to claimant. At issue is the jurisdiction of the superior court to enter the order and the applicability of the one-year statute of limitation.

Claimant worked for Borden, Inc. as a milk delivery driver from 1969 through August 1990. On January 9, 1990, claimant injured his back while lifting a crate of milk. Claimant called his branch manager, Jimmy Bruce, and told him that his back was hurting. Mr. Bruce met claimant along his route and helped him finish his route and assisted claimant for the rest of the week. The following week claimant went to his doctor who advised that he was unable to work due to a low back injury. Claimant remained off work for approximately two months, during which time he applied for payment under appellant’s salary continuation plan. As part of his application, claimant submitted a physician’s statement which indicated that his injury was work related. When claimant submitted the form, Mr. Bruce told him that he could not receive workers’ compensation and his salary, and claimant changed the physician’s statement to indicate that his injury was not work related. When claimant returned to work, another employee assisted him on his route for approximately two weeks, after which time claimant resumed his regular duties without assistance. Claimant continued to experience pain in his back, and although he discussed the possibility of a lighter duty job with Mr. Bruce, no such job was ever offered to claimant. Claimant continued working until August 18, 1990 at which time he resigned because of the pain in his back.

On August 5, 1991, claimant filed a claim for workers’ compensation benefits. A hearing was held, and the administrative law judge ruled that claimant was entitled to workers’ compensation benefits. The full board reversed the award, finding that the claim was barred by the one-year statute of limitation. On December 8, 1992, claimant filed a notice of appeal to the Superior Court of Ware County with the full board. The case was scheduled for a hearing on February 23, 1993. However, both parties agreed to waive oral argument and submit the case on briefs. In an order dated February 10, 1993, the superior court reversed the full board.

1. Appellants first argue that the full board’s award was affirmed by operation of law when the superior court did not issue an order within 60 days of the filing of the notice of appeal. OCGA § 34-9-105 (b) provides, in relevant part, as follows: “The case so appealed may then be brought by either party upon ten days’ written notice to the other before the superior court for a hearing upon such record . . . provided, however, if the court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court. In the event a hearing is held later than 60 days after the date the notice of appeal is filed with the board because same has been continued to a date certain . . . the decision of the board shall be considered affirmed by operation of law if no order . . . has been entered within 20 days after the date of the continued hearing. If a case is heard within 60 days from the date the notice of appeal is filed, the decision of the board shall be considered affirmed by operation of law if no order . . . has been entered within 20 days of the date of the hearing.” It is undisputed that no hearing was scheduled within the 60-day time period allowed under the statute and that the superior court’s order was entered on February 10, 1993, sixty-four days after the filing of the notice of appeal. However, claimant argues that the superior court had until February 26, 1993, twenty days after the expiration of the 60-day period, to enter an order. We disagree. The statute does not cover the exact situation presented by this case where the parties waive the hearing. However, we have consistently held that where a hearing is not held or rescheduled in accordance with OCGA § 34-9-105 (b), the superior court loses jurisdiction of the case 60 days after the notice of appeal is filed with the board. See, e.g., Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (1) (404 SE2d 626) (1991); Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990). The purpose of OCGA § 34-9-105 (b) is “to expedite the disposition of workers’ compensation claims that have been appealed to the courts of this state.” Felton Pearson Co. v. Nelson, 260 Ga. 513, 514 (397 SE2d 431) (1990). With this purpose in mind, we decline to carve out an exception which gives the superior court more than the statutory 60 days to rule on a claim when the parties waive the hearing. Consequently, we conclude that since no hearing was held or order entered within 60 days after the notice of appeal was filed, the superior court lost jurisdiction of the case by operation of law and its order was a nullity. Synthetic Indus., supra at 637; see also Miller v. Merck & Co., 199 Ga. App. 722, 723 (405 SE2d 761) (1991).

Therefore, we reverse the judgment of the superior court and direct the court to vacate its order. See Miller, supra.

2. Since the trial court’s order was a nullity, it cannot serve as a basis for appeal to this court. See Synthetic Indus., supra. Therefore, we cannot address appellants’ remaining enumerations of error.

Judgment reversed with direction.

Beasley, P. J., concurs specially. Smith, J., concurs in judgment only.