Court of Appeals
of the State of Georgia

                                        ATLANTA,____________________
                                                  January 16, 2015

The Court of Appeals hereby passes the following order:

A15D0209. FLEXSTAFF SERVICES et al. v. KAREN JOHNSON.

       Flexstaff Services and its workers’ compensation insurer seek to appeal an
adverse workers’ compensation decision. The record shows that after the Appellate
Division of the State Board of Workers’ Compensation (the “Board”) affirmed the
award of benefits to Karen Johnson, Flexstaff Services filed a timely notice of appeal
to the superior court. According to the trial court’s order, the Board transmitted its
record to the superior court on May 22, 2014, and the action was docketed in the
superior court on May 27, 2014. In September 2014, Flexstaff Services filed a motion
for scheduling order for appeal. Johnson filed a response, arguing that the superior
court had lost jurisdiction. The trial court entered an order on December 3, 2014,
agreeing that the Board’s decision had been affirmed as a matter of law. On December
23, 2014, Flexstaff Services filed an application for discretionary appeal from the
December 3, 2014 order. Johnson, however, argues that Flexstaff Services’ appeal to
the superior court was previously affirmed by operation of law, rendering the superior
court’s order a nullity and Flexstaff Services’ application for discretionary appeal
untimely. We agree.
       OCGA § 34-9-105 (b) provides, in relevant part, that “if the court does not hear
the case within 60 days of the date of docketing in the superior court, the decision of
the board shall be considered affirmed by operation of law. . . .” It is the appellant’s
burden to ensure that either a hearing is scheduled within the 60 day period or an order
is entered on a decision within that period. See Coronet Carpets v. Reynolds, 199 Ga.
App. 383, 384 (405 SE2d 103) (1991). Here, because the appeal was docketed on May
27, 2014, and the 60th day therefore fell on a weekend, the decision was affirmed by
operation of law on Monday, July 28, 2014. This is the date that controls for purposes
of filing a timely application for appeal.1 See OCGA § 34-9-105 (d); Synthetic
Industries v. Camp, 196 Ga. App. 637, 637-638 (396 SE2d 518) (1990). The superior
court’s subsequent award was a mere nullity. See MacKenzie v. Sav-A-Lot Food Store,
226 Ga. App. 32, 34 (1) (485 SE2d 559) (1997).
       In order for this Court to have jurisdiction, we must have a timely filed
application for discretionary appeal. Boyle v. State, 190 Ga. App. 734 (380 SE2d 57)
(1989). An application is timely if it is filed within 30 days of the entry of the order
the applicant seeks to appeal. See OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App. 582
(420 SE2d 393) (1992). Thus, Flexstaff Services had to file its application within 30
days of July 28, 2014, the date that the Board’s decision was affirmed by operation of
law. Its application – filed on December 23, 2014 – is untimely. Accordingly, this
application for discretionary appeal is hereby DISMISSED for lack of jurisdiction. See
OCGA § 5-6-35 (d); Hill v. State, 204 Ga. App. 582 (420 SE2d 393) (1992).

                                      Court of Appeals of the State of Georgia
                                                                           01/16/2015
                                             Clerk’s Office, Atlanta,____________________
                                             I certify that the above is a true extract from
                                      the minutes of the Court of Appeals of Georgia.
                                             Witness my signature and the seal of said court
                                      hereto affixed the day and year last above written.

                                                                                            , Clerk.


      1
         In its application, Flexstaff Services challenges the date of docketing, arguing
that it never received notice that the case was docketed and that a case is not docketed
until costs are paid. These arguments are not persuasive. First, Flexstaff Services has
not pointed to any rule requiring the superior court to give notice of docketing.
According to the superior court, the parties received written notice of the transmittal
of the record from the Board to the superior court on May 22, 2014, and it was
incumbent upon the appellant to exercise due diligence in determining the docketing
date once it received this notice. Likewise, Flexstaff Services has not pointed to any
rule requiring superior court costs to be paid before an appeal is docketed. OCGA §
5-3-22, cited by Flexstaff Services, mandates that costs must be paid before an appeal
may be heard, but that statute refers to costs “which have accrued in the court, agency,
or tribunal below.” Moreover, even if Flexstaff Services is correct that an appeal is
docketed when superior court costs are paid, Exhibit D shows that Flexstaff Services
paid costs on July 31, 2014, and the 60 day period would have expired long before the
superior court issued its December 3, 2014 order.
