Aetna Cas. & Sur. Co. v. Barden, 72169

• Decision Date: 20 June 1986
• Docket Number: No. 72169,72169
• Citation: 346 S.E.2d 588,179 Ga.App. 442
• Court: Georgia Court of Appeals
• Parties: AETNA CASUALTY & SURETY COMPANY et al. v. BARDEN.

Page 588

346 S.E.2d 588

179 Ga.App. 442

AETNA CASUALTY & SURETY COMPANY et al. v. BARDEN.

No. 72169.

Court of Appeals of Georgia.

June 20, 1986.

William A. Erwin, Albany, for appellant.

Jim T. Bennett, Jr., Valdosta, for appellee.

CARLEY, Judge.

Appellee is a workers' compensation claimant. Appellants are the insurer and the employer. The administrative law judge (ALJ) issued an award on November 28, 1984, which was favorable to appellee. Appellants timely sought review by the Full Board. On May 7, 1985, the Full Board issued its award. No timely appeal to the superior court was ever taken from this award. However, on May 17, 1985, within the 30-day period during which such an appeal might have been taken, appellee's attorney wrote to the Full Board and requested that the award be amended. On June 26, 1985, after the 30-day period following issuance of the original award had expired, the Full Board issued an "amended award."

Appellants did appeal to the superior court from this "amended award." The contention was that, pursuant to OCGA § 34-9-105(b), the Full Board has jurisdiction to amend an award only during the 30-day period following issuance of the original award, which period had expired prior to June 26, 1985. During the pendency of the appeal in the superior court, appellee sought and secured yet another "amended award" from the Full Board. In this "amended award," the Full Board stated that its "actual decision" to amend the original award had been reached on May 20, 1985, although the "amended award" which was dated June 26, 1985 and which reflected that decision had itself not been "physically prepared and mailed within 30 days of the [original] award dated May 7, 1985...." After the superior court was apprised of this latest "amended award," the "amended award" of June 26, 1985 was affirmed.

Appellants applied to this court for a discretionary appeal from the superior court's order. The application was granted and the instant appeal results.

1. The applicable statutory provision regarding administrative jurisdiction to amend a workers' compensation award is OCGA § 34-9-103(b): "Within the [30-day] time limit provided [for making application] for review by all of the members of an award made [by an ALJ] or within the [30-day] time limit ... for appeal to a superior court, upon or without the suggestion of a party to the proceedings and notwithstanding the filing of an application for review or appeal, the [F]ull [B]oard or any of its members or [an ALJ] issuing an award shall have authority to reconsider, amend, or revise the award to correct apparent errors and omissions. Should an amended or revised award be issued, the [30-day] time period for filing an application for [Full Board] review of the amended or revised award ... or for filing appeal to a superior court ... shall commence upon the date of issuance of the amended or revised award." We perceive the proper statutory construction of OCGA § 34-9-103(b) to be the following: Within the 30 days subsequent to the date that an ALJ issues an award, he has "authority to reconsider, amend, or revise" that award for the limited purpose of correcting "apparent errors and omissions." This authority exists notwithstanding the fact that either an application for Full Board review or an appeal to a superior court may already have been filed as to the original award during the same 30-day period. This authority may be exercised by the ALJ acting on his own motion or at the "suggestion" of one of the parties. In the exercise of this authority, should the ALJ issue an amended or revised award, a new 30-day time period for applying for Full Board review or for an appeal to a superior court as to that amended or revised award will commence on the date of its issuance. This same analysis would also apply in the context of an award issued by the Full Board. Notwithstanding the possibility of an appeal therefrom to a superior court, the Full Board would retain the same limited 30-day "authority" over its award, which it may exercise in the same fashion as an ALJ, and with the same result. In short, OCGA § 34-9-103(b) grants to both the ALJ and the Full Board a limited 30-day "authority" over workers' compensation awards, which "authority" is in the nature of a limited "continuing jurisdiction."

In the instant case, appellee "suggested" that the Full Board exercise its authority under OCGA § 34-9-103(b). Pursuant to that authority, the Full Board may have "reconsidered" its original award during the applicable 30-day period. It did not, however, issue its "amended award" during that 30-day period. The statute plainly states that "within the [30-day] time limit" the Full Board has certain limited authority to "reconsider, amend, or revise" its original award. (Emphasis supplied.) The word "within" means "during" and "not later than." See Wall v. Youmans, 223 Ga. 191, 192, 154 S.E.2d 191 (1967). "[T]he word 'or' is usually a disjunctive conjunction, indicating an alternative between ... different things...." Whitaker v. State, 11 Ga.App. 208, 211(5), 75 S.E. 258 (1912). Thus, under OCGA § 34-9-103(b), the Full Board, "during" but "not later than" the 30-day period, has the following "authority": It can enter into a "reconsideration" of its original award, and if an apparent error or omission is found, the Full Board then can either "amend" or "revise" the original award as may be necessary. See generally Cotton States Ins. Co. v. Bates, 140 Ga.App. 428, 231 S.E.2d 445 (1976). The Full Board cannot, however, "reconsider" the original award during the entire 30-day period and then subsequently amend or revise that award. The original award must be amended or revised "within" the applicable 30-day period. "The board has no jurisdiction beyond that granted by the Workers' Compensation Act...." Russell v. Fast Framers, Inc., 164 Ga.App. 771, 772, 298 S.E.2d 303 (1982).

2. Relying on Denton v. U.S.F. & G. Co., 158 Ga.App. 849, 282 S.E.2d 350 (1981), appellee urges that, notwithstanding issuance of the amended award on June 26, 1985, the original award was "amended" on May 20, 1985. The contention is that, under the holding in Denton, the Full Board's act of issuing the amended award was merely a "ministerial function" and that it is the date the vote was taken by the Full Board that is determinative.

The Denton case involved a settlement agreement. The applicable statutory provision regarding workers' compensation settlement agreements is OCGA § 34-9-15. That statute provides, in relevant part, as follows: "[T]he board shall approve the settlement and enter an award conforming to the terms thereof ... When such settlement has been agreed upon and approved by the board, it shall constitute a complete and final disposition of all claims...." (Emphasis supplied.) As OCGA § 34-9-15 was construed in Denton, supra at 851, 282 S.E.2d 350, it is the Full Board's initial act of agreeing upon and approving an existing settlement that "is the active agent which renders the settlement binding" and the subsequent act of preparing and issuing the conforming award is a mere "ministerial function."

The instant case does not involve a settlement. At issue is an award issued by the Full Board after conducting its own de novo review. OCGA § 34-9-103(b) is the applicable statute and it provides that the Full Board has certain authority to amend its own award, which it can exercise "within the time limit provided by...