Clinical Arts Home Care Services v. Smith

• Decision Date: 08 September 1995
• Docket Number: No. A95A1047,A95A1047
• Citation: Clinical Arts Home Care Services v. Smith, 462 S.E.2d 757, 218 Ga.App. 681 (Ga. App. 1995)
• Parties: CLINICAL ARTS HOME CARE SERVICES et al. v. SMITH et al.
• Court: Georgia Court of Appeals

Page 757

462 S.E.2d 757

218 Ga.App. 681

CLINICAL ARTS HOME CARE SERVICES et al. v. SMITH et al.

No. A95A1047.

Court of Appeals of Georgia.

Sept. 8, 1995.

Reconsideration Denied Oct. 5, 1995.

Shivers, Johnson & Wilson, Benjamin J. Johnson, Edwin G. Russell, Jr., Atlanta, for appellants.

Burdine & Brown, Thomas F. Brown, II, Atlanta, Mallard & Wilson, Emmett E. Mallard, Jr., Monroe, for appellees.

ANDREWS, Judge.

Smith, who worked as a home health care aid for Clinical Arts Home Care Services (Clinical Arts) received workers' compensation benefits for a work-related injury she suffered in March 1993. She returned to work in May 1993 and suffered another work-related injury. When the original March 1993 injury occurred, Clinical Arts was insured by Aetna Casualty & Surety Company (Aetna Casualty), but when Smith was injured in May 1993, Clinical Arts was insured by Guarantee Mutual Life Insurance Company (Guarantee Mutual). Smith was paid benefits for the May 1993 injury, and a hearing was subsequently held before an Administrative Law Judge (ALJ) to determine whether the May 1993 injury was a change in condition for the worse from the March 1993 injury, for which Aetna Casualty was responsible, or a new injury, for which the new insurer, Guarantee Mutual, was responsible.

The ALJ found that, when Smith returned to work in May 1993, she sustained the second accidental injury as a result of a specific job-related incident which aggravated the pre-existing back and shoulder condition resulting from the March accidental injury. Finding that the second incident at least partially precipitated Smith's present disability, the ALJ concluded that there was a new injury under the holding of Central State Hosp. v. James, 147 Ga.App. 308, 309, 248 S.E.2d 678 (1978). There was testimony from Smith that she suffered the second injury when she leaned over to pick up a pan of water, and that this injury caused additional neck and arm pain not associated with the first injury. Smith's doctor testified that, as a result of the second incident, there was an aggravation of the pre-existing condition and also possible additional soft tissue damage.

The case was appealed to the appellate division of the State Board of Workers' Compensation, which heard the case on the parties' oral arguments and briefs and the evidence admitted in the trial division of the Board before the ALJ. After the hearing the appellate division rendered a decision on August 30, 1994, reversing the decision of the ALJ and concluding that the evidence showed that there was a change in condition rather than a new injury. Contrary to the findings of the ALJ, the appellate division concluded that since "Smith suffered no specific incident during her return to work," there was a change in condition as a result of ordinary wear and tear rather than a new accident. See Central State Hosp., supra at 309-310, 248 S.E.2d 678.

On appeal to the superior court, a timely order was not entered pursuant to OCGA § 34-9-105(b), and the decision of the appellate division was affirmed by operation of law. We granted this discretionary appeal to Clinical Arts and its insurer, Aetna Casualty, which claim that the appellate division erred as a matter of law in reversing the decision of the ALJ.

The appellate division's August 30, 1994 decision was prefaced by the statement that "[u]pon de novo consideration of all evidence, the Appellate Division substitutes its findings of fact and conclusions of law for the administrative law judge's findings of fact and conclusions of law." Effective July 1, 1994, an amended version of OCGA § 34-9-103(a) (Ga.L.1994, p. 887, § 8) provided that, when the decision of an ALJ in the trial division is appealed to the appellate division, "[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."

We conclude that the appellate division's "de novo consideration of all evidence" in this case applied an incorrect standard of review to the evidence admitted in the trial division before the ALJ. Although in reviewing the ALJ's decision the appellate division must make its own findings of fact and conclusions of law, under the amended version of OCGA § 34-9-103(a), it no longer conducts a de novo review of the evidence upon which the ALJ's findings of fact are based. Under the old version of OCGA § 34-9-103(a), a review of the evidence admitted before the ALJ was de novo in the sense that the Board (now designated the appellate division) could disregard any findings of fact made by the ALJ, regardless of evidentiary support, and substitute its own findings of fact, as long as there was any evidence to support its substituted findings. Saunders v. Bailey, 205 Ga.App. 808, 810, 423 S.E.2d 688 (1992); Automatic Sprinkler Corp., etc. v. Rucker, 87 Ga.App. 375, 384-385, 73 S.E.2d 609 (1952). Under the amended version of OCGA § 34-9-103(a), however, the appellate division is required to accept findings of fact made by the ALJ "where such findings are supported by a preponderance of competent and credible evidence contained within the records." ¹ This new standard of review is inconsistent with the "de novo consideration of all evidence" applied by the appellate division in this case.

Moreover, we find that, even though the amended version of OCGA § 34-9-103(a) became effective on July 1, 1994, after the ALJ heard the case and rendered his decision on February 22, 1994, the appellate division erred by failing to apply the amended version of the statute when it rendered its decision on August 30, 1994. The statute is procedural, there is no vested right in preserving appellate review of the ALJ's decision under the version of OCGA § 34-9-103(a) which existed at the time the ALJ decided the case, and the Legislature did not express an intent that the amendment not be applied retroactively. Polito v. Holland, 258 Ga. 54, 55, 365 S.E.2d 273 (1988). Therefore, when the appellate division rendered its decision on August 30, 1994, it should have applied the amended version of OCGA § 34-9-103(a) as the standard of review, rather than the de novo review applicable under the former version of the statute. Drake v. LaRue Constr. Co., 215 Ga.App. 453, 455-456, 451 S.E.2d 792 (1994); Thompson v. Wilbert Vault Co., 178 Ga.App. 489, 343 S.E.2d 515 (1986).

Since the appellate division failed to review the evidence under the proper standard, and its decision reversing the ALJ was subsequently affirmed by operation of law pursuant to OCGA § 34-9-105(b), we reverse the decision of the appellate division, and remand the case to the superior court with directions that the case be recommitted to the appellate division of the Board for review under the proper standard as set forth in this opinion. ²

Judgment reversed and case remanded with directions.

BEASLEY, C.J., BIRDSONG and POPE, P.JJ., and JOHNSON, BLACKBURN, SMITH and RUFFIN, JJ., concur.

McMURRAY, P.J., dissents.

McMURRAY, Presiding Judge, dissenting.

I respectfully dissent for two separate reasons. First, I fail to find in the record where the issue addressed in the majority opinion is the...