Favors v. Travelers Ins. Co.

• Decision Date: 13 July 1979
• Docket Number: No. 57805,57805
• Citation: 150 Ga.App. 741,258 S.E.2d 554
• Parties: FAVORS v. TRAVELERS INSURANCE COMPANY et al.
• Court: Georgia Court of Appeals

Page 554

258 S.E.2d 554

150 Ga.App. 741

FAVORS v. TRAVELERS INSURANCE COMPANY et al.

No. 57805.

Court of Appeals of Georgia.

Argued May 7, 1979.

Decided July 13, 1979.

Arrington, Rubin, Winter, Krischer & Goger, S. Richard Rubin, Atlanta, for appellant.

Neely, Player, Hamilton & Hines, Andrew J. Hamilton, B. A. Bladen, Atlanta, for appellees.

CARLEY, Judge.

Favors made a timely claim for worker's compensation and applied for a hearing. On September 9, 1977, the hearing was held, and the record was left open until December 27, 1977. Thereafter, in a "Notice of Award" dated January 27, 1978, the administrative law judge directed that compensation be paid to Favors. The employer and insurer filed an application for review of this award with the state board on February 28, 1978. With one director dissenting, the full board, using January 27, 1978, as the operative date, found that the application for review had not been filed "within 30 days of notice of the award" as required by Code Ann. § 114-708, and dismissed the application for review. The employer and insurer appealed this dismissal to the Superior Court of Fulton County. The superior court reversed and remanded the case to the full board, holding that: "The critical date to be used in determining the time within which an appeal may be filed with the full board of the State Board of Workers' Compensation seeking review of an award of an Administrative Law Judge is the date that notice of the subject award is actually received by the party seeking appeal, or that party's counsel."

Favors appeals from the superior court's reversal and remand and urges that the board's original determination that the application for review was untimely filed was correct and that the state board is without jurisdiction to consider the merits of the application. We disagree and affirm, though we reject the reasoning.

1. The questions presented on this appeal may be simply stated: Does Code Ann. § 114-708 require that an application for review by the state board be filed within 30 days from the date appearing on the face of the award itself? If not, under the workers' compensation law in force and effect at the time relevant to this appeal what was the date of "notice of the award" within 30 days of which an application for review must have been filed with the state board? While the questions may be simply stated, their resolution is more difficult.

Favors argues strenuously that the "notice of the award" referred to in Code Ann. § 114-708 means the tangible document denominated "Notice of Award" which evinces the administrative law judge's findings and his award of compensation. Favors urges that a party has 30 days from the date which appears on the face of that document within which to apply for review, irregardless of "notice" to the party of the contents and the import of the award itself. In other words, Favors argues that the 30-day period provided by Code Ann. § 114-708 expired on February 26, 1978, and that date being a Sunday, the last day for filing for review was Monday, February 27, 1978.

We do not agree that "notice" as contemplated by the legislature when enacting Code Ann. § 114-708 refers to a tangible document. Construing together the statutes operative at the times relevant to this appeal (former Code Ann. § 114-707 (Ga.L.1975, pp. 198, 207) and Code Ann. § 114-708), it is clear that the legislature intended "notice of the award" to be more than a mere piece of paper. "The members, any of them, or a deputy director shall hear the parties at issue . . . and shall determine the dispute in a summary manner . . . The award, . . . shall be filed with the record of the proceedings and a Copy of the award shall immediately be sent to the parties at dispute . . . If an application for review is made to the State Board of Workmen's Compensation within 30 days of Notice of the award, all of the members shall review the evidence . . ., and shall make an Award and file the same . . . A Copy of the award so made on review shall immediately be sent to the parties at dispute . . ." (Emphasis supplied.) It is thus readily seen that references to the document are made in terms of "an award" or "a copy of the award;" the words "notice of the award" found in Code Ann. § 114-708 are unique and must connote something other than the document itself. Cf. Ryan v. Commissioners of Chatham County, 203 Ga. 730, 731(1), 48 S.E.2d 86 (1948).

That "notice of the award" is something other than words on paper is borne out in the cases construing this language in the predecessor statute to existing Code Ann. § 114-708. In Fluellen v. Campbell Coal Co., 54 Ga.App. 355, 188 S.E. 54 (1936) an award denying compensation was made on January 4, 1933, and the attorney for the claimant received "notice" of this award on January 5, 1933. On these facts, the court, in discussing the question of "notice" and timely filing of an appeal, held that "(n)otice as to orders and times of hearings to an attorney whose name is of record as counsel for a client, or who has represented the client . . ., is Notice to the client. (Cits.)" Id. at 356(3), 188 S.E. at 56 (Emphasis supplied.) Likewise, in Sweatman v. Hartford Accident & Indem. Co., 100 Ga.App. 734, 735, 112 S.E.2d 440, 441 (1959) the court found that the statutory requirement that an appeal be filed within a certain number of days of "notice of the award" was a "provision" for the giving of notice; it was error to dismiss an appeal from a workers' compensation award because of untimely filing when neither the claimant nor his attorney received a copy of the award, "no compliance having been made as to the Notice provision . . ." (Emphasis supplied.) It is thus clear that "notice of the award" under Code Ann. § 114-708 does not merely refer to the tangible document which evinces the award; that the state board denominates its form "Notice of Award" does not require a contrary holding in light of the prior construction of the language of Code Ann. § 114-708 as a provision for the giving of "notice" of the award and not as merely a copy of the award itself.

What then is "notice of the award" under Code Ann. § 114-708? It is our opinion that the Code section contemplates that the 30-day period within which an application must be filed begins to run from the date that the legal requirements of giving "notice" have been satisfied. The appellee-insurer and the superior court are of the opinion that such requirements are not met until the party receives actual notice of the award, so that the 30-day period begins to run on the date that the party actually receives his "copy of the award." Arguably the early cases construing "notice of the award" support this interpretation of the language. For example, in a fair reading of the Fluellen decision, supra, while the issue is never addressed directly, the implication is that the court considered the actual receipt of the copy of the award by the parties as compliance with the notice provision. Since, until recent enactment of Ga.L.1978, pp. 2220, 2229 (Code Ann. § 114-707(f) ) the award of an administrative law judge could be issued within an indeterminate time from the date of the close of the record, such a construction of the notice provision in the predecessor to Code Ann. § 114-708 requiring actual receipt of the award by the parties might have been viably supported as necessary to protect against clerical or postal service errors which were more likely to result in injustice to a losing party than would have been the case had there been a deadline for the issuance of the award.

There is, however, another explanation for this construction which we believe to be determinative. Under the prior workers' compensation statutes there was no provision as to the manner in which service of notice was to be effected; judicial recognition was taken, however, of the board's custom to serve notice by posting it in the United States mail. Bailey-Lewis-Williams of Ga. v. Thomas, 103 Ga.App. 279(1), 119 S.E.2d 141 (1961). Thus, while it is never expressed, the cases which construe the predecessor to Code Ann. § 114-708 as requiring actual receipt of the award fall within the rule that "(w)here notice is required to be given, it is generally held, In the absence of anything appearing to the contrary, that the notice is not complete until it is received; and that, while mailing a notice duly directed and stamped may furnish presumptive evidence of its receipt, it does not alone constitute notice. (Cits.)" Puryear v. Farmers Mutual Ins. Assn., 137 Ga. 579, 581, 73 S.E. 851, 852 (1911). (Emphasis supplied.) Compare Genone v. Citizens Ins. Co., 207 Ga. 83, 86(2), 60 S.E.2d 125 (1950).

Such was not the state of the law at the time relevant to this appeal. ¹ Ga.L.1974, pp. 1143, 1154 (former Code Ann. § 114-706) operative here provided, inter alia: "The State Board of Workmen's Compensation shall, . . ., provide that each employee-claimant and employer must, . . ., establish an address of record with the board and it shall be incumbent upon such employee-claimant and employer to keep said address of record up to date. The requirement of any notice required by this (Code) Title Shall be satisfied by sending such notice to the address of record by registered or certified mail." (Emphasis supplied.) It is thus seen that this statute did establish a rule "contrary" to any previous requirement that actual receipt was necessary; it established that the notice provision of Code Ann. § 114-708 would be Satisfied by sending "a copy of the award" to the parties by registered or certified mail. Thereafter, notice was effective upon Proper posting and the "critical" day from which the 30 days began to run was the date of such posting and not, as the appellee-insurer contends and as the superior court held, the date of actual receipt. Cf. Wyone Shoe Co. v. Daniels & Co., 136 Ga. 192(1), 71 S.E. 1 (1911); Harris v. U. S....