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Northeast Georgia Health System3/24/2003
WHOLE COURT
Following mediation, Cherly Danner and her employer, Northeast Georgia Health System, Inc., agreed to settle Danner's workers' compensation claim for $25,000 Although Danner's current mailing address was contained in the settlement agreement, the employer's servicing agent inadvertently mailed the payment to her former address. Danner received the payment, which was forwarded to her by the post office, but claimed it was untimely and moved the ALJ to assess a 20 percent penalty. The ALJ granted the motion, and both the Appellate Division and the superior court affirmed the award. We granted the employer's Application for Discretionary Appeal, and for reasons that follow, we reverse.
The evidence underlying assessment of the penalty is undisputed. On March 28, 2001, the State Board of Workers' Compensation approved the parties' settlement agreement. On April 3, 2001, the employer's servicing agent, located in Baton Rouge, Louisiana, mailed Danner a check for the lump sum payment. Because the check was sent to Danner's former address in Cornelia, Georgia, the postal service readdressed it to her current address in Cartersville, Georgia on April 14, 2001, and forwarded it to that address. Danner alleges that she received the check on April 18, 2001, 21 days after the Board approved the settlement agreement.
Danner subsequently moved the Board to assess a 20 percent statutory penalty, arguing that the employer failed to timely pay the settlement within 20 days as required by the Workers' Compensation Act. Under the Act, the settlement agreement became binding as an award when it was approved by the Board on March 28, 2001. The Act provides that, " f income benefits payable under the terms of an award are not paid within 20 days after becoming due, there shall be added to the accrued income benefits an amount equal to 20 percent thereof." The method for calculating the time for payment requires that it be "mail or deliver . . . to the address specified by the employee or the address of record. The payment shall be considered paid when postmarked and mailed within the State of Georgia or three days from the date of postmark and mailing if mailed out of the State." In this case, the ALJ awarded the penalty upon finding "that the employer/self-insurer failed to use the proper address and, as a result of that failure, the payment was tardy." The Appellate Division adopted that finding.
The employer argues that it should not have been assessed a penalty because, notwithstanding the servicing agent's failure to correctly address the payment, it was timely and properly mailed by the postal service before the due date. Although we are unaware of any workers' compensation cases on point, in Andrews v. Howard the Supreme Court addressed a similar issue in the context of a statutorily required notice of contract non-renewal. The statute at issue in Andrews required the notice to "`be served either personally or by certified mail. Service shall be deemed to be perfected when said notice is deposited in the United States Mail addressed to the last known address of the addressee with sufficient postage affixed thereto.'" Although the notice at issue was misaddressed, the mail carrier saw the error and corrected it. The Court concluded that substantial compliance with the statutory requirements was sufficient and that "because of the diligence of the postal service, there was sufficient compliance with [the Code section]. The evidence shows an attempted delivery to her correct, last known address."
We reach the same conclusion in this case. The legislature enacted the workers' compensation settlement procedures to "encourage [settlement], so long as the
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