Reynolds Construction Co. v. Reynolds

Beasley, Chief Judge,

concurring specially.

This case illustrates again the necessity to revamp the appellate procedure for workers’ compensation cases. Although the superior court heard the appeal from the appellate division within 60 days from the date the notice of appeal was filed, the court failed to file its order within 20 days of the date of the hearing, as required by OCGA § 34-9-105 (b). The record reflects that the judge signed the detailed order on the twentieth day after the hearing, but that the order was not filed with the clerk until the twenty-second day after the hearing. Because the superior court order was not timely entered pursuant to OCGA § 34-9-105 (b), the appellate division was affirmed by operation of law and the superior court order was a nullity. Buschel v. Kysor/Warren, 213 Ga. App. 91, 93 (444 SE2d 105) (1994). Thus, the preparation for the hearing, the hearing itself, the court’s consideration of the case taken under advisement, and the order are for nought.

Even though the application for appeal pursuant to OCGA § 5-6-35 purported to be from the superior court order, it was sufficient to invoke this Court’s jurisdiction. Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (404 SE2d 626) (1991); OCGA § 34-9-105 (d).

This brings about the anomaly of an application for discretionary review of a void order, which we granted so as to review the much earlier award of an administrative tribunal. The law, of course, does not provide for an application to this court, under OCGA § 5-6-35 or any other statute, for review of the award of the workers’ compensation board. Yet that is in effect what we have permitted, timing it from the date of the superior court order which is legally void.

This procedure puts the case into the same posture as one where appellant simply bypasses the superior court altogether and we ignore the procedural law. See Atlanta Family Restaurants v. Perry, 209 Ga. App. 581, 582-585 (434 SE2d 140) (1993) (Beasley, J., concurring specially). There is no sanction on parties or superior court for refusing or failing to abide by the appellate procedure provided by the legislature. It has simply been made optional, and an appellant who merely permits the time for appeal to the superior court to expire obtains a *27quicker review by this court.

When judicial resources are strained and the cost of litigation is substantial and delay itself harms — conditions which all exist now and bear no hope of subsiding — the provision for two appellate reviews of a contested workers’ compensation case is wasteful and unnecessary. Besides, as shown by this case and Atlanta Family Restaurants, supra, and many others, the procedure provided by law is not always adhered to. This ongoing problem deserves legislative scrutiny.