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American Mobile Imaging4/15/2003
American Mobile Imaging, Inc. ("American Mobile") and Fireman's Fund Insurance Company ("Fireman's Fund") moved the superior court to set aside an award of Workers' Compensation benefits to Kathleen Miles, asserting that they did not "receive proper notice of the request for a hearing or notice of hearing." The superior court denied the motion, and we granted American Mobile/Fireman Fund's application for discretionary appeal. For reasons that follow, we affirm.
The record reveals that, on November 21, 2001, Miles filed a request for a workers' compensation hearing and listed American Mobile as the employer. The State Board of Workers' Compensation scheduled a hearing in the matter, and a secretary at the State Board mailed hearing notices to American Mobile and Fireman's Fund, the workers' compensation insurance provider.
Although the secretary evidently mailed the hearing notices to the correct addresses, she did not send the notices via certified mail. And employees of American Imaging and Fireman's Fund aver that they never received any notice. Thus, neither American Imaging nor Fireman's Fund appeared at the hearing. After the State Board of Workers' Compensation awarded benefits to Miles, American Imaging and Fireman's Fund moved to set aside the award. The two companies argue that the lack of notice constitutes a non-amendable defect, which warrants setting aside the award. We disagree.
OCGA § 34-9-102 (i) requires employers to maintain a current address with the State Board of Workers' Compensation and provides that " ny notice required by this chapter shall be satisfied by the mailing of the notice to the address of record." Such statute, which focuses on the mailing of notice rather than actual receipt, does not violate due process. As this Court recently noted,
ue process requires notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Applying that standard, courts have found first-class mail sufficient to meet due process requirements despite contentions that the notices were never received.
It is true that " judgment or order based upon a trial or hearing entered against a party without notice to that party of the trial or hearing is subject to a motion to set aside where the lack of notice appears on the face of the record." Again, however, the relevant Code section expressly provides that the notice requirement is satisfied by "mailing" such notice, and it does not require that notice be sent via certified mail. Thus, we find that mailing notice, via first class mail, is sufficient. Accordingly, we cannot conclude that the failure of a party to actually receive the notice constitutes a non-amendable defect. And the cases cited by American Imaging/Fireman's Fund do nothing to dissuade us, as none construes a statute analogous to OCGA § 34-9-102 (i).
American Imaging/Fireman's Fund also argue that a different rule is required because American Imaging is a nonresident employer. Specifically, American Imaging/Fireman's Fund assert that OCGA § 34-9- 102 (j) mandates that a nonresident party be served via certified mail or statutory overnight delivery. Pretermitting whether the State Board of Workers' Compensation should have notified American Imaging in this fashion, we find no basis for reversal. OCGA § 34-9-1 (3), which defines "employer," provides that " f the employer is insured, this term shall include insurer as far as applicable." Thus, notice to either the employer or insurer serves as notice to the other. In this case, although American Imaging is a nonresident, Fireman's Fund, which h
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