Bankhead Enterprises v. Beavers

• Decision Date: 17 February 1997
• Docket Number: No. S96A1814,S96A1814
• Citation: Bankhead Enterprises v. Beavers, 267 Ga. 506, 480 S.E.2d 840 (Ga. 1997)
• Parties: , 97 FCDR 527 BANKHEAD ENTERPRISES et al. v. BEAVERS.
• Court: Georgia Supreme Court

Page 840

480 S.E.2d 840

267 Ga. 506, 97 FCDR 527

BANKHEAD ENTERPRISES et al. v. BEAVERS.

No. S96A1814.

Supreme Court of Georgia.

Feb. 17, 1997.

James G. Jackson, Sligh, Presmanes & Jackson, P.C., Atlanta, for Bankhead Enterprises.

Charles H. Lumpkin, Jr., Charles H. Lumpkin, Jr., P.C., Carrollton, for William Larry Beavers.

THOMPSON, Justice.

After the Court of Appeals declined to review an application for discretionary appeal brought by employer Bankhead Enterprises and its insurer in this worker's compensation case, we granted employer/insurer's petition for certiorari and application for discretionary review.

This case involves the role of the appellate division of the Workers' Compensation Board in reviewing an award of the administrative law judge in the trial division, and raises this question: Whether OCGA § 34-9-103(a), as amended by Ga. Laws 1994, p. 887, § 8, authorizes the appellate division to vacate the ALJ's findings of fact and conclusions of law as unsupported by a preponderance of the competent and credible evidence, and to substitute its own findings. We hold that it does, and we reverse the judgment of the superior court.

The 1994 amendment designates an appellate division of the State Board of Workers' Compensation, vesting it with original appellate jurisdiction in all workers' compensation cases. It further redefines the authority and function of the appellate division in hearing appeals from a decision of an administrative law judge.

A party dissatisfied with an ALJ's decision in a workers' compensation case may make timely application for review to the appellate division. OCGA § 34-9-103(a), as amended, directs the appellate division to "review the evidence [adduced in the trial division and] then make an award with findings of fact and conclusions of law." Formerly, OCGA § 34-9-103(a) authorized the appellate division (then designated as the board) to hear additional testimony. ¹ The 1994 amendment deleted that language, so that de novo review by the appellate division is no longer authorized. Under the new standard, "[t]he findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records." Id. Thus, the appellate division must weigh the evidence and assess the credibility of witnesses and if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted. But, if after assessing the evidence of record, the appellate division concludes that the award does not meet the statutes' evidentiary standards, the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly. Accord Bennett-Murray, Inc. v. Barnes, 222 Ga.App. 137(1), 473 S.E.2d 166 (1996); AT&T v. Cotten, 222 Ga.App. 261, 474 S.E.2d 102 (1996); Clinical Arts v. Smith, 218 Ga.App. 681, 462 S.E.2d 757 (1995); Harrell v. City of Albany Police Dept., 219 Ga.App. 810(1), 466 S.E.2d 682 (1996).

Both the former and amended versions of subsection (a) permit the appellate division to "remand to an administrative law judge in the trial division any case before it for the purpose of reconsideration and correction of apparent errors and omissions and issuance of a new award, with or without the taking of additional evidence, or for the purpose of taking additional evidence for consideration by the appellate division in rendering any decision or award in the case." Id.

In the present case, the appellate division twice reversed findings of...