Rule-Making and Subpoena Powers; Service and Enforcement of Subpoenas

1. Law
2. Georgia Code
3. Labor and Industrial Relations
4. Workers' Compensation
5. Administration
6. Rule-Making and Subpoena Powers; Service and Enforcement of Subpoenas

1. The board may make rules, not inconsistent with this chapter, for carrying out this chapter. Processes and procedure under this chapter shall be as summary and simple as reasonably possible; provided, however, that, in any proceeding under this chapter where the parties are represented by counsel, the board may require, by rule or regulation, on forms provided by the board, the filing of statements of contentions and points of agreement. The board may promulgate policies, rules, and regulations concerning the electronic submission to and transmission from the board of documents and filings. The board, any member of the board, or any administrative law judge shall have the power for the purposes of this chapter to issue and enforce subpoenas, to administer or cause to have administered oaths, and to examine or cause to be examined such parts of the books and records of the parties to a proceeding as relate to questions in dispute. Article 2 of Chapter 13 of Title 24 shall govern the issuance and enforcement of subpoenas pursuant to this Code section, except that the board, any member of the board, or any administrative law judge shall carry out the functions of the court and the executive director shall carry out the functions of the clerk of the court. The board shall not, however, have the power to order imprisonment as a means of enforcing a subpoena. The board shall have the power to issue writs of fieri facias in order to collect fines imposed pursuant to this Code section and such writs may be enforced in the same manner as a similar writ issued by a superior court.
2. In addition to the enforcement procedures provided in subsection (a) of this Code section, the superior court of the county in which the hearing is held shall, on application of the board, any member of the board, or an administrative law judge, enforce by proper proceedings the attendance and testimony of witnesses and the production and examination of books, papers, and records.

(Ga. L. 1920, p. 167, § 53; Ga. L. 1925, p. 282, § 4; Code 1933, § 114-703; Ga. L. 1973, p. 232, § 7; Ga. L. 1988, p. 1679, § 14; Ga. L. 2005, p. 1210, § 3/HB 327; Ga. L. 2011, p. 99, § 47/HB 24.)

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For annual survey of workers' compensation law, see 57 Mercer L. Rev. 419 (2005). For article, "Evidence," see 27 Ga. St. U.L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U.L. Rev. 1 (2011).

JUDICIAL DECISIONS

Constitutionality.

- This section was a normal delegation of legislative authority to an administrative agency, allowing it to run its own affairs, and does not violate due process. Davis v. Caldwell, 53 F.R.D. 373 (N.D. Ga. 1971).

Rule-making powers of the board are confined and limited to procedural and administrative matters. Southern Coop. Foundry Co. v. Drummond, 76 Ga. App. 222, 45 S.E.2d 687 (1947).

Board rules promulgated under O.C.G.A. § 34-9-60(a) may not enlarge, reduce, or otherwise affect substantive rights of parties, but must be confined and limited to procedural and administrative matters. Holt Serv. Co. v. Modlin, 163 Ga. App. 283, 293 S.E.2d 741 (1982).

State Board of Workers' Compensation exceeded the board's rule-making authority, as a matter of law, in creating an unpublished rule of appellate procedure that was inconsistent with O.C.G.A. § 34-9-103(b). MARTA v. Reid, 282 Ga. App. 877, 640 S.E.2d 300 (2006).

State Board of Workers' Compensation did not exceed the board's authority under O.C.G.A. §§ 34-9-59 and34-9-60(a) when the board promulgated Ga. Bd. Workers' Comp. R. 205 as it was not burden-shifting and it did not interfere with the substantive rights of the parties. Mulligan v. Selective HR Solutions, Inc., 289 Ga. 753, 716 S.E.2d 150 (2011).

Establishment of presumption of compensability constituted a substantive rule.

- Board rule providing claimant with rebuttable presumption of compensability upon employer/insurer's failure to file notice to controvert within 21-day statutory period constituted substantive and thus impermissible exercise of board's rule-making authority. Holt Serv. Co. v. Modlin, 163 Ga. App. 283, 293 S.E.2d 741 (1982).

Rules not to be legislative in character.

- Board has the authority to adopt rules not inconsistent with the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.); such rules must not be legislative in character, but are confined and limited to procedural and administrative matters. Department of Pub. Safety v. Orr, 122 Ga. App. 439, 177 S.E.2d 164 (1970).

Rule fixing amount of compensation not authorized.

- Board is only authorized to make rules and regulations not inconsistent with the law and with regard to matters of procedure, and may not fix by an arbitrary rule the amount of compensation payable in any case. Southern Coop. Foundry Co. v. Drummond, 76 Ga. App. 222, 45 S.E.2d 687 (1947).

Rule promulgated by the board, which precluded a showing that a partial loss of the distal phalange resulted in only a partial disability, was an attempt by the board to legislate as to the measure of compensation payable, and as such was invalid. Southern Coop. Foundry Co. v. Drummond, 76 Ga. App. 222, 45 S.E.2d 687 (1947).

Power to direct claimant to report earnings.

- Board, in administering the workers' compensation law (see now O.C.G.A. § 34-9-1 et seq.), is empowered to direct claimant to furnish reports of earnings from other employment to an employer and insurer obligated to make payments to the claimant for partial disability, or in any situation when the information would serve a needful purpose. Hopper v. Continental Ins. Co., 121 Ga. App. 850, 176 S.E.2d 109 (1970).

Appellate court cannot take judicial notice of rule adopted by the commission (now board) on any given subject. Crouch v. Fisher, 43 Ga. App. 484, 159 S.E. 746 (1931).

Cited in Whisenant v. Bostick, 61 Ga. App. 447, 6 S.E.2d 146 (1939); VMW, Inc. v. Foster, 185 Ga. App. 405, 364 S.E.2d 301 (1987); Hartford Cas. Ins. Co. v. Hawkins, 353 Ga. App. 681, 839 S.E.2d 230 (2020).

OPINIONS OF THE ATTORNEY GENERAL

Charge for summoning of witness by sheriff at request of the board, see 1965-66 Op. Att'y Gen. 66-75.

Summoning witness is different from serving copy of process and returning original. 1965-66 Op. Att'y Gen. No. 66-75.

RESEARCH REFERENCES

C.J.S.

- 100 C.J.S., Workers' Compensation, §§ 828, 829.

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