Truckstops of America, Inc. v. Engram

Eldridge, Judge,

dissenting.

I must respectfully dissent.

Truckstops of America, Inc., the employer, contends that the Superior Court of Glynn County’s order of September 5, 1996 was void, because the superior court lost subject matter jurisdiction by operation of law 60 days after the Appellate Division’s order became final on May 14, 1996, which date for the automatic affirmance by operation of law would be July 13, 1996. Specifically, the employer attacks the validity of the September 5, 1996 order of the superior court, which remanded the claim back to the Appellate Division; it *619attacks the superior court’s order of April 29, 1997, which affirmed the new award of the Appellate Division, following the remand order of September 5, 1996, because such subsequent order was the indirect product of the earlier order, which it contends was void ab initio. The employer never appealed the September 5, 1996 order, because it asserted that it did not receive notice of the order within the time to seek a discretionary appeal and waited until it had a final order from which to seek discretionary appeal.

Workers’ compensation procedures and administration are executive branch functions under the separation of powers doctrine. Ga. Const. 1983, Art. I, Sec. II, Par. III. Whatever subject matter jurisdiction that a superior court or appellate court has must be granted by the General Assembly. Under OCGA § 34-9-105 (b), the superior court has a 60-day window of opportunity to rule on an appeal unless the claim is set for hearing and then continued within the statutory guidelines; the court loses subject matter jurisdiction to rule on the case outside such time period. Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990); see also Borden, Inc. v. Holland, 212 Ga. App. 820, 822 (1) (442 SE2d 916) (1994).

The purpose of OCGA § 34-9-105 (b) was to remedy a problem in the superior courts where some trial judges had allowed the appeals in workers’ compensation cases to languish for long periods of time; therefore, the General Assembly forced the expedited appellate review by placing a time limit on the previously unlimited period of subject matter jurisdiction in the superior courts. The Supreme Court held that the purpose of the act was “to expedite the disposition of worker’s compensation claims that had been appealed to the courts of this state,” which was a remedial purpose. Felton Pearson Co. v. Nelson, 260 Ga. 513, 514 (397 SE2d 431) (1990).

Georgia Laws 1997, p. 1367, § 4, amended the act as described in the caption as a purpose of this amendment: “to provide for the holding of a hearing by the superior court within 60 days of the date of the docketing in such court.” OCGA § 34-9-105 (b) now reads in pertinent part: “however, if the court does not hear the case within 60 days of the date of docketing in the superior court, the decision of the board shall be considered affirmed by operation of law. . . .” Such amendment had a remedial purpose, which was to avoid the issue presented on appeal and in prior decisions of this Court, which automatically made the judgment final before the superior court had adequate time to rule on the appeal. See Borders, Inc. v. Holland, supra; Travelers Ins. Co. v. McNabb, 201 Ga. App. 297 (410 SE2d 788) (1991); Miller v. Merck & Co., 199 Ga. App. 722 (405 SE2d 761) (1991); Coronet Carpets v. Reynolds, 199 Ga. App. 383 (405 SE2d 103) (1991); Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (404 SE2d 626) (1991); Synthetic Indus. v. Camp, supra.

*620Decided December 2, 1997. Drew, Eckl & Farnham, John A. Ferguson, Jr., Nicole D. Tifverman, for appellants. Edward E. Boshears, for appellee.

Although workers’ compensation law is in derogation of common law, it is to be given a liberal construction, because its purposes are beneficent. Brown v. Lumbermen’s Mut. Cas. Co., 49 Ga. App. 99 (174 SE 359) (1934); see also Schwartz v. Greenbaum, 236 Ga. 476 (224 SE2d 38) (1976); Ins. Co. of N. A. v. Cooley, 118 Ga. App. 46 (162 SE2d 821) (1968); Davis v. Bibb Mfg. Co., 75 Ga. App. 515 (43 SE2d 780) (1947). The act is highly remedial in nature so that it should receive liberal construction. McElreath v. McElreath, 155 Ga. App. 826 (273 SE2d 205) (1980); Travelers Ins. Co. v. Gaither, 148 Ga. App. 251 (251 SE2d 66) (1978); London Guarantee &c. Co. v. Cox, 41 Ga. App. 329 (153 SE 227) (1930). Ordinary rules of law do not apply to claims under this chapter of the code, because this chapter constitutes a complete code of law on the subject. Tillman v. Moody, 181 Ga. 530 (182 SE 906) (1935); see also Fireman’s Fund Ins. Co. v. Crowder, 123 Ga. App. 469 (181 SE2d 530) (1971); St. Paul Fire &c. Ins. Co. v. Miniweather, 119 Ga. App. 617 (168 SE2d 341) (1969). The subject matter jurisdiction and the change in the determination of the time within which it exists are procedural and do not affect any substantive rights of either party; therefore, procedural and remedial changes in the workers’ compensation act should receive retroactive application. Truckstops of America v. Engram, 220 Ga. App. 289, 291 (2) (469 SE2d 425) (1996); Clinical Arts Home Care Svcs. v. Smith, 218 Ga. App. 681, 683 (462 SE2d 757) (1995); Venable v. John P. King Mfg. Co., 174 Ga. App. 800 (331 SE2d 638) (1985); St. Paul Fire &c. Ins. Co. v. Norman, 173 Ga. App. 198 (325 SE2d 810) (1984). “Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. [Cit.] On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an express contrary intention. [Cits.]” Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988).

As a retroactive application of an amendment affecting procedure only, the order of September 5,1996 was not void, the trial court should be affirmed.