KOOL SMILES/NCDR, LLC v. HANSEL GONZALEZ , 342 Ga. App. 503 ( 2017 )


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  •                               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
    

Document Info

Docket Number: A17A0687

Citation Numbers: 342 Ga. App. 503, 803 S.E.2d 795, 2017 Ga. App. LEXIS 369, 2017 WL 3392772

Judges: Doyle, Miller, Reese

Filed Date: 8/8/2017

Precedential Status: Precedential

Modified Date: 11/8/2024