Dallas v. Flying J, Inc.
| Decision Date | 12 May 2006 |
| Docket Number | No. A06A0316.,A06A0316. |
| Citation | 279 Ga. App. 786,632 S.E.2d 389 |
| Court | Georgia Court of Appeals |
| Parties | DALLAS v. FLYING J, INC. |
Walter D. Adams, Brunswick, for appellant.
Neil C. Thom, Marietta, for appellee.
Following a work-related injury, Lester Dallas was awarded temporary total disability benefits under the workers' compensation scheme. The State Board of Workers' Compensation ("the Board") subsequently suspended Dallas' benefits for failure to cooperate with medical treatment. Thereafter, Dallas requested that his benefits be reinstated, his weekly payment be increased, and attorney fees be assessed against his employer, Flying J, Inc. ("Flying J"). Following a hearing, the administrative law judge ("ALJ") reinstated Dallas' benefits and increased his weekly payment.
Flying J appealed to the Board's appellate division, and Dallas cross-appealed, asserting that the ALJ erred in not deciding whether he was entitled to assessed attorney fees. The appellate division affirmed in part and vacated in part the ALJ's decision. In particular, it found that Dallas was not entitled to reinstatement of his benefits. Dallas appealed this decision to the superior court, which failed to rule within the time required by OCGA § 34-9-105(b), resulting in an affirmance by operation of law. We granted Dallas' application for discretionary appeal, and this appeal followed. Finding no error, we affirm.
In resolving Dallas' appeal, we must keep in mind the various standards of review applicable in this case. The Board's appellate division is authorized to review the evidence adduced before the ALJ, weigh that evidence, and assess witness credibility.1 If the appellate division determines that the preponderance of evidence supports the ALJ's decision, it will accept and affirm that award.2 "But, if . . . the appellate division concludes that the award does not meet [the applicable] evidentiary standards, [it] may substitute its own alternative findings for those of the ALJ, and enter an award accordingly."3 The appellate division may "substitute its findings for those of the ALJ only when its alternative findings are supported by some evidence in the record."4
Once the case is appealed from the appellate division, both this Court and the superior court must view the evidence in a light favorable to the party prevailing before that division.5 If any evidence supports the appellate division's findings, those findings are binding and conclusive, and we may not "substitute [ourselves] as a fact finding body in lieu of the Board."6
Construed with these standards in mind, the record shows that Dallas was injured in December 2000. On August 12, 2003, the ALJ ordered Dallas to call his treating physician, Glynn Immediate Care ( 34;GIC"), schedule an appointment within 15 days, attend that appointment, and cooperate with treatment. Dallas did not return to GIC, and the ALJ suspended his income benefits in December 2003 for failure to cooperate with medical treatment.
Shortly after the suspension, Dallas sought reinstatement of benefits, as well as an increase in his weekly benefit and an order assessing attorney fees against Flying J. At a hearing held on these issues, Dallas testified that he called GIC several times after receiving the August 12, 2003 order and attempted to schedule an appointment. Each time, he was told that GIC served patients on a first come, first serve, walk-in basis. Refusing to schedule an appointment, GIC instructed Dallas simply to come to the clinic.
As noted above, Dallas never returned to GIC. In his view, however, he did everything possible to comply with the ALJ's August 12, 2003 order. He thus sought reinstatement of his benefits.
With respect to his weekly wage, Dallas presented evidence that the weekly wage previously determined by the ALJ did not fully compensate him for overtime that he typically worked prior to his injury. According to Dallas, Flying J failed to pay him for this overtime, and he ultimately settled a Fair Labor Standards Act claim with the company for $35,000. Dallas testified that he should have earned "at least two or three hundred dollars more . . . [per week] for . . . overtime." Based on this testimony, he requested that the ALJ redetermine his average weekly wage to take into account overtime payments he should have received.
In his findings of fact and conclusions of law, the ALJ determined that Dallas knew GIC was a walk-in clinic that did not schedule appointments. He further found that "in any other circumstance," Dallas' failure to return to the clinic and sign in as a walk-in patient would be "deemed a failure to cooperate with medical treatment."7 Nevertheless, because the August 12 order instructed Dallas to call GIC, schedule an appointment, and attend that appointment, which Dallas attempted but was unable to do, the ALJ concluded that Dallas "perfectly complied with the letter" of the order.8 The ALJ thus felt constrained to lift the suspension and reinstate Dallas' income benefits back to September 1, 2003, despite the fact that Dallas had not returned to the clinic for treatment.
On the wage issue, the ALJ determined that Dallas earned $550 per week while working at Flying J, an increase from the previously determined amount of $486.65. Using this revised weekly wage, the ALJ recalculated the amount of weekly income benefits owed to Dallas. Finally, the ALJ's order did not address Dallas' claim that Flying J should be assessed attorney fees.
Flying J appealed the ALJ's decision with respect to the reinstated benefits and the amount of those benefits. Dallas cross-appealed, asserting that the ALJ erred in failing to assess attorney fees against Flying J.9 The Board's appellate division found that the ALJ properly determined Dallas' average weekly wage to be $550. But it vacated the reinstatement of Dallas' benefits. According to the appellate division, Dallas failed to cooperate with medical treatment by not returning to GIC, and it suspended his benefits pending his return for treatment. Moreover, it found no basis for assessing attorney fees against Flying J.
1. On appeal, Dallas first argues that the appellate division erred in calculating his average weekly wage. As noted above, the ALJ determined that Dallas' average weekly wage was $550, and Dallas did not challenge this amount before the appellate division. In fact, when Flying J appealed the ALJ's finding regarding the weekly wage, Dallas argued that it should be affirmed, and the appellate division did so. Under these circumstances, Dallas cannot now question this finding.10
Based on the $550 weekly average wage, the ALJ determined that Dallas was entitled to an income benefit of $375 per week. The appellate division initially affirmed that ruling, then later amended its decision after concluding that, given the weekly average wage, the workers' compensation provisions only authorized an income benefit of $366.67. To the extent Dallas challenges this benefit calculation on appeal, we find no error.
Under OCGA § 34-9-261, "[w]hile the disability to work resulting from an injury is temporarily total, the employer shall pay or cause to be paid to the employee a weekly benefit equal to two-thirds of the employee's average weekly wage," with certain minimum and maximum limitations. Dallas' weekly wage has been found to be $550. Two-thirds of this amount is $366.67. Dallas has not shown that he is entitled to more than this sum. Accordingly, the appellate division properly determined that Dallas is entitled to compensation at the rate of $366.67 per week.
2. Dallas next argues that the appellate division improperly vacated the ALJ's reinstatement of his benefits. A claimant's responsibility for obtaining medical treatment is outlined in OCGA § 34-9-200(c). Pursuant to this provision,
[a]s long as an employee is receiving compensation, he or she shall submit himself or herself to examination by the authorized treating physician at reasonable times. If the employee refuses to submit himself or herself to or in any way obstructs such an examination requested by and provided for by the employer, upon order of the board his or her right to compensation shall be suspended until such refusal or objection ceases and no compensation shall at any time be payable for the period of suspension unless in the opinion of the board the circumstances justify the refusal or obstruction.11
The ALJ apparently concluded that since GIC is a walk-in clinic that does not take appointments, Dallas could not be penalized for failing to return to treatment, given the language in the August 12, 2003 order directing him to make an appointment. The appellate division disagreed, and we find no error.
Although the ALJ deemed Dallas' failure to return to GIC justified, the appellate division found insufficient evidence to support this conclusion. Dallas was informed by GIC on several occasions that the clinic did not take appointments, but that he could receive treatment on a first come, first serve basis. The division rejected Dallas' claim that it would be "unreasonable to expect him to sit in a room which may be cramped with twenty or more sick patients awaiting his turn." And given the facts presented, particularly that Dallas knew he could be seen by a doctor at GIC simply by walking into the clinic, at least some evidence supported the appellate division's determination that he failed to cooperate with treatment.12
The workers' compensation provisions required Dallas to submit himself for examination by his authorized treating physician.13 Between August 2003 and the hearing before the ALJ in April 2004, Dallas failed to return to GIC for treatment, despite...
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Ansell v. Ansell, A14A0308
...to the statutory basis for an award of attorney fees or vacate its order). 11. See generally Hunter, supra;Dallas v. Flying J, Inc., 279 Ga.App. 786, 791(3), 632 S.E.2d 389 (2006) (appellant did not specify the statutory provision through which he had requested attorney fees, and appellate ......
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Ansell v. Ansell, A14A0308
...to the statutory basis for an award of attorney fees or vacate its order). 11. See generally Hunter, supra; Dallas v. Flying J, Inc., 279 Ga. App. 786, 791 (3) (632 SE2d 389) (2006) (appellant did not specify the statutory provision through which he had requested attorney fees, and appellat......
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...view the evidence in such an appeal in the light most favorable to the party prevailing before the Board. See Dallas v. Flying J, Inc., 279 Ga.App. 786, 787, 632 S.E.2d 389 (2006). The Board's findings, if supported by any evidence, are conclusive and binding. See id. So viewed, the evidenc......
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