SECOND DIVISION
MILLER, P. J.,
DOYLE and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
August 8, 2017
In the Court of Appeals of Georgia
A17A0687. KOOL SMILES/NCDR, LLC et al. v. GONZALEZ. DO-029
DOYLE, Judge.
Pursuant to the grant of a discretionary appeal under OCGA § 5-6-35 (a) (1),
employer Kool Smiles/NCDR, LLC, appeals the judgment of the superior court
reversing in part the award of the State Board of Workers’ Compensation (“the
Board”) to Hansel Gonzalez. Kool Smiles contends the superior court’s judgment is
a nullity because the award of the full Board was affirmed by operation of law when
the judgment was not entered within 20 days of the hearing as required by OCGA §
34-9-105 (b). For the reasons that follow, we vacate the superior court’s order.1
1
See Coronet Carpets v. Reynolds, 199 Ga. App. 383, 383-384 (405 SE2d
103)(1991) (dismissing appeal).
In 2005, Gonzalez sustained an on-the-job injury for which he was awarded
temporary total disability benefits due to the classification of the injury as
catastrophic. In 2015, the parties requested a hearing before a State Board of
Workers’ Compensation Administrative Law Judge (“ALJ”) to address a change of
physician authorization requested by Kool Smiles and requests by Gonzalez for
additional treatments and for attorney fees against Kool Smiles for their unreasonable
defense of denial of the treatments and request for change of physician. On October
18, 2015, the ALJ denied Kool Smiles’s request for the change of physician, granted
Gonzalez’s requests for additional treatments, and awarded attorney fees to Gonzalez
based on Kool Smiles’s unreasonable defense.
Kool Smiles appealed the order to the Board, and after a hearing, the Board
issued an order on March 4, 2016, upholding the ALJ as to the issues of the physician
change and the additional treatments, but reversing the ALJ as to the issue of attorney
fees. Gonzalez filed a timely notice of appeal from the Board’s order in the Superior
Court of Gwinnett County pursuant to OCGA § 34-9-105 (b). On August 1, 2016, the
superior court conducted a judicial review hearing. The court did not enter its order
reversing the Final Decision until August 31, 2016. Kool Smiles filed an application
for discretionary appeal on September 20, 2016, which application was granted by
2
this Court in an order entered on October 12, 2016. Thereafter, Kool Smiles filed a
timely notice of appeal. .
1. Under OCGA § 34-9-105 (b), the superior court order disposing of a
workers’ compensation appeal must be “entered” within 20 days of the hearing on the
appeal or the award of the Board will be affirmed by operation of law. Here, because
the superior court failed to satisfy that time limit, its order is a nullity.2 As this Court
has explained “the language of the statute is clear and this [C]ourt is without power
to avoid the ill-effect created by the statute as written.”3 Accordingly, we are
constrained to hold that the superior court lost jurisdiction of the case on August 20,
2016, and its subsequent order was therefore a nullity.
2. Based on the holding of Division 1, Kool Smiles’s other enumerations of
error are moot.
2
See, e.g., Buschel v. Kysor, 213 Ga. App. 91, 93 (1) (444 SE2d 105) (1994);
Coronet Carpets, 199 Ga. App. at 383-384. Cf. Synthetic Indus. v. Camp, 196 Ga.
App. 637 (396 SE2d 518) (1990) (holding that the superior court lost jurisdiction of
the case when it failed to hold a hearing on the appeal within 60 days of the time from
which the appeal was filed).
3
(Citation and punctuation omitted.) Coronet Carpets, 199 Ga. App. at 384.
3
The judgment of the superior court is hereby vacated because the decision of
the full Board was affirmed by operation of law.4
Judgment vacated. Miller, P. J., and Reese, J., concur.
4
See Buschel, 213 Ga. App. at 95 (5). Cf. Kennestone Hosp. v. Cartersville
Med. Center, 341 Ga. App. 28, 30-32 (1) (798 SE2d 381) (2017) (vacating untimely
issued order under similar statutory scheme). Compare with Holder v. City of Atlanta,
294 Ga. App. 568, 570 (669 SE2d 504) (2008) (reversing superior court order after
holding that it was a nullity); Coronet Carpets, 199 Ga. App. at 384 (dismissing
appeal in same circumstance).
4