BONUS STORES INC. v. HENSLEY

• Decision Date: 05 April 2011
• Docket Number: A11A0307
• Citation: Bonus Stores, Inc. v. Hensley, A11A0307 (Ga. App. Apr 05, 2011)
• Parties: BONUS STORES, INC. et al. v. HENSLEY.
• Court: Georgia Court of Appeals

BONUS STORES, INC. et al.

v.HENSLEY.

A11A0307

Court of Appeals of Georgia THIRD DIVISION

April 5, 2011

ELLINGTON, C. J.,

MILLER, P. J., and DOYLE, J.

NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed.

(Court of AppealsRule 4 (b)andRule 37 (b), February 21, 2008)

Ellington, Chief Judge.

In this workers' compensation action, an administrative law judge ("ALJ") for the State Board of Workers' Compensation granted Edward Hensley's claim for temporary total disability benefits after finding that Hensley had sustained a catastrophic injury arising out of and in the course of his employment.Bonus Stores, Inc. and Specialty Risk Services (collectively, the "employer") appealed to the Board's Appellate Division, which reversed the decision of the ALJ after finding that the preponderance of the competent and credible evidence did not support the catastrophic designation.Hensley appealed to the Superior Court of Greene County, which reversed the decision of the Appellate Division, based on its conclusion that the Appellate Division improperly applied a de novo standard of review.We granted the employer's application for a discretionary appeal, and the employerappeals, contending the superior court misconstrued the law that applied to the Appellate Division's review of the ALJ's award and to the superior court's review of the Appellate Division's decision.¹For the reasons explained below, we reverse the decision of the superior court.

The record shows that Hensley injured his back in March 2002 when he was working for the employer as the general manager at Bill's Dollar Store.The employer accepted the claim as compensable and paid Hensley temporary total disability benefits through November 2003, then partial disability benefits until November 2008.After the employer stopped paying benefits, Hensley requested a catastrophic designation for his injury.At the hearing, the ALJ received into evidence a letter dated November 5, 2003, from Hensley's family physician, Dr. Wesley Ensley, in which Dr. Ensley opined that, as of that date, Hensley "is totally disabled from physical labor in his current condition.This determination has been attained after evaluating the records at hand and weighing the patient's subjective assessment of his ability to perform physical work."The ALJ also received a questionnaire regarding Hensley's residual functional capacity that Dr. Ensleyprepared for the Social Security Administration in September 2004, in which he diagnosed Hensley with neuropathy and chronic persistent pain and stated that Hensley could sit and stand or walk less than two hours each in a work day and would have to take frequent and prolonged unscheduled rest breaks.In addition, the ALJ received a written "vocational assessment" prepared by William Thompson, a vocational specialist, who interviewed Hensley in November 2007 and reviewed his medical records.In his written report, Thompson opined that there is no work available in substantial numbers within the national economy which Hensley is capable of performing.

Among other documents, the employer offered a report prepared by Dr. Lee Kelley, an orthopedist, who examined Hensley in December 2003 and reviewed an MRI of his lower back and concluded that Hensley could return to work with no restrictions.The employer also offered a report prepared by Dr. Thomas Dopson, a spine specialist, who examined Hensley in July 2005 and found no orthopedic, neurologic, radiographic, or other objective clinical basis for any employment restrictions.In addition, the employer offered a report prepared by Dr. Ezequiel Cassinelli, another orthopedist, who evaluated Hensley in May 2009 and concluded that Hensley had reached maximum medical improvement from his March 2002back injury the following year and that he had no remaining impairment in connection with that injury.

At the hearing, in addition to Hensley's own testimony, the ALJ heard the testimony of Thompson, the vocational specialist.Thompson testified that, since preparing his written vocational assessment, he had reviewed Dr. Cassinelli's findings and that, if the ALJ found those findings to be credible, there would be jobs that Hensley could perform.

The ALJ concluded that Hensley's back injury was catastrophic, finding that it was "of such a nature and severity that it prevents [Hensley] from being able to perform his prior work and any work available in substantial numbers within the national economy for which he is otherwise qualified."²The ALJ's award shows that the ALJ relied primarily on Dr. Ensley's November 2003 evaluation, which he reiterated in the September 2004 questionnaire, and on Thompson's written vocational assessment.

The record shows that, in ruling on the employer's appeal of the ALJ's decision to the Appellate Division, the Appellate Division considered the entire record that was before the ALJ.The Appellate Division noted that, although Dr. Ensley and Thompson had concluded that Hensley could not perform any jobs in the national economy, Dr. Cassinelli and other specialists had more recently concluded that Hensley could work with no or few restrictions.After viewing the record as a whole, the Appellate Division

assign[ed] greater weight to the consensus of the examining physicians, which assign little or no injury-related work limitations to [Hensley].Finding those medical opinions to be credible, [the Appellate Division] also [found] that [Hensley] is capable of performing jobs in the national economy, and that the preponderance of competent and credible evidence does not support the award of catastrophic designation under OCGA § 34-9-200.1 (g)(6).

Accordingly, the Appellate Division vacated the ALJ's award and denied Hensley's request that his injury be designated as catastrophic.

Hensley appealed the Appellate Division's ruling to the superior court, asserting that the Appellate Division had exceeded its authority, that it had misapplied the law, and that the evidence did not supports its findings.The superiorcourt found that the Appellate Division committed legal error by improperly applying a de novo standard of review and that the application of the correct standard of review required a finding that the ALJ's award designating Hensley's injuries as catastrophic was supported by the preponderance of the competent and credible evidence.

1.The employer contends that the superior court erred in ruling that the Appellate Division committed legal error by improperly applying a de novo standard of review to the ALJ's findings of fact.

As amended in 1994,³OCGA § 34-9-103 (a) provides, in pertinent part, that, when the Appellate Division of the State Board of Workers' Compensation reviews an ALJ's decision, the ALJ's findings of fact "shall be accepted by the [A]ppellate [D]ivision where such findings are supported by a preponderance of competent and credible evidence contained within the records."Since the 1994amendment, as we have explained, the Appellate Division may no longer hear additional evidence but is limited to the record established in the trial division, that is, the evidence that wasreceived by the ALJ.Home Depot v. McCreary, _ Ga. App. _ (1)(Case No. A10A1408, decided November...