Caswell, Inc. v. Spencer

• Decision Date: 23 June 2006
• Docket Number: No. A06A0572.,A06A0572.
• Citation: 280 Ga. App. 141,633 S.E.2d 449
• Parties: CASWELL, INC. et al. v. SPENCER.
• Court: Georgia Court of Appeals

280 Ga. App. 141

633 S.E.2d 449

CASWELL, INC. et al. v. SPENCER.

No. A06A0572.

Court of Appeals of Georgia.

June 23, 2006.

McLain & Merritt, Jeffrey E. Hickcox, Swift, Currie, McGhee & Hiers, Charles E. Harris IV, Atlanta, for appellants.

Smith, Wallis & Scott, Christopher B. Scott, Carrollton, for appellee.

JOHNSON, Presiding Judge.

Ernest Spencer was awarded workers' compensation benefits for back injuries sustained while working for Caswell, Inc. He applied to the State Board of Workers' Compensation for a designation of his injuries as catastrophic under OCGA § 34-9-200.1(g)(6). An administrative decision issued by a rehabilitation coordinator found that the injuries are catastrophic because, among other things, Spencer's age of 62 years renders him unable to adapt to even light duty work.

Caswell and insurer AIU Insurance Company requested, and were granted, a hearing before an administrative law judge. The administrative law judge rejected the administrative decision, expressly disagreeing with the finding that a 62-year-old is unable to adapt to light duty work, and held that Spencer's injuries are not catastrophic. The appellate division of the board adopted the administrative law judge's decision as its own.

Spencer then appealed to superior court, arguing, among other things, that the board had erred in failing to consider his age in deciding his claim. The court agreed with Spencer and remanded the case to the board for reconsideration of the claim, finding that an expert opinion upon which the administrative law judge had relied did not include consideration of Spencer's age.

Caswell and AIU filed an application for discretionary appeal. We granted the application, and Caswell and AIU timely filed their notice of appeal. Because it is clear from the record that the administrative law judge did in fact consider the issue of age, we reverse the superior court's remand order.

OCGA § 34-9-200.1(g)(6)(A) provides that a "catastrophic injury" means "[a]ny other injury of a nature and severity that prevents the employee from being able to perform his or her prior work and any work available in substantial numbers within the national economy for which such employee is otherwise qualified." This court has noted that under the comparable federal provision, the Supreme Court has held that age is a factor to consider in determining whether other jobs exist for which the employee is qualified.

We note that the United States Supreme Court has held that consideration of the comparable federal provision requires an assessment of an individual's abilities in order to determine whether jobs exist that a person having the individual's qualifications could perform. This would include consideration of the individual's physical ability, age, education, and work experience.¹

In the instant case, contrary to the ruling of the superior court, it is apparent from the record that Spencer's age was an issue considered by both the administrative law judge and the expert whose testimony he found to be credible. In his written decision, the administrative law judge expressly disagreed with the assessment in the...