Davis v. Carter Mechanical, Inc.

• Decision Date: 13 April 2005
• Docket Number: No. A04A2047.,A04A2047.
• Citation: 612 S.E.2d 879,272 Ga. App. 773
• Parties: DAVIS v. CARTER MECHANICAL, INC.
• Court: Georgia Court of Appeals

612 S.E.2d 879

272 Ga. App. 773

DAVIS v. CARTER MECHANICAL, INC.

No. A04A2047.

Court of Appeals of Georgia.

March 30, 2005.

Reconsideration Denied April 13, 2005.

COPYRIGHT MATERIAL OMITTED

Westmoreland, Patterson & Moseley, Thomas W. Herman, Macon, for appellant.

Carlock, Copeland, Semler & Stair, Christopher A. Whitlock, Kelly M. Clark, Atlanta, for appellee.

ADAMS, Judge.

William Davis, Jr. was injured on January 16, 1998, in the course of his employment with Carter Mechanical, Inc., when a large steel platform fell on his right leg. He sought to have his injury designated as "catastrophic" under the applicable provision of the Workers' Compensation Act, OCGA § 34-9-200.1(g)(6). The administrative law judge found that Davis's injury was catastrophic as defined under the Act, but the appellate division of the State Board of Workers' Compensation reversed that finding. The superior court affirmed. We granted Davis's discretionary appeal to address the issue of catastrophic injury under the Act.

Davis sought to prove that his injury is "catastrophic" by showing that it is "of [such] 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." OCGA § 34-9-200.1(g)(6). There is no dispute that Davis is unable to perform his prior job. Accordingly, the only issue is whether there is any work available in substantial numbers within the national economy for which Davis is otherwise qualified.

Davis's work experience involved jobs requiring physical labor that he can no longer perform. His medical treatment included two operations on his knee. The last report furnished by Davis's doctor, dated October 27, 2001, imposed restrictions upon his lifting in excess of 50 pounds and upon excessive bending, stooping and squatting. The doctor recommended that he perform only sedentary work, which involves lifting up to ten pounds.

Davis's Functional Capacity Evaluation ("FCE"), dated April 4, 2002, shows his safe maximum work capacity within the medium to medium/heavy range, which entails no heavy lifting over 50 pounds. The FCE also recommended that he change position from standing to sitting every 30 minutes. Although the FCE lists some restrictions on kneeling, crawling, climbing and repetitive squatting, it does not specifically list any restrictions upon bending. On May 1, 2002, Davis's doctor signed a letter indicating that he agreed with the restrictions listed in the FCE.

Davis's vocational expert, William Thompson, testified at the hearing before the ALJ that he had interviewed Davis, reviewed his medical records, reviewed the FCE, performed a vocational assessment and conducted several tests to measure Davis's achievement, intellectual aptitudes, educational level and temperament. In addition to the physical restrictions listed in the medical reports and FCE, Thompson's tests indicated that Davis's reading comprehension is at a fourth-grade level and his vocabulary is at a seventh-grade level. He spells at a third-grade level, and functions at a high school level in math. His IQ score of 87 places him in the average range of intelligence. Davis graduated high school out of the special education curriculum.

Based upon these factors, Thompson testified that Davis would have trouble filling out a job application because he cannot read or write well. He said that Davis would need help in reading about job opportunities or filling out job applications. Further, he "may find it difficult to succeed in any job that called for salesmanship, supervising others, communication skills, managerial skills, public relations skills, and interviewing skills." It was Thompson's opinion that no work was available in substantial numbers within the national economy for which Davis was qualified given his limitations.

Carl Dye, the vocational expert for Carter Mechanical, testified that he had prepared a labor market survey and a list of jobs reflecting a substantial number of jobs available in the national economy that Davis was capable of performing. In preparing these reports, Dye relied primarily upon Davis's medical reports, his deposition testimony and the FCE, and he took into consideration Davis's age, occupation, training and limitations as defined in those documents. Specifically, he understood that Davis's restrictions were for medium to light-heavy work, lifting up to 50 pounds and no kneeling, crouching or climbing. Dye relied upon the evaluation in the FCE that Davis could stand from 64 to 100 percent of the work day. He did not believe that the recommendation that Davis alternate sitting and standing during the day removed Davis from the medium to light-heavy restriction.

In preparing his analysis for the case, Dye searched for entry level jobs, with some on-the-job training, in the light, sedentary-light or medium work categories, taking into account Davis's age, occupation, training and limitations. He determined that the jobs he located, including positions for cashiers, security guards and information clerks, were available in substantial numbers in the national economy, but clarified that when he used the word "available," he meant that the jobs exist, not that they represent job openings. Dye stated that he believed Davis was capable of performing these jobs, and he assumed that Davis could perform the full range of essential functions for the positions. Just prior to the hearing, Dye updated his analysis to identify jobs available in the local area that fit Davis's criteria, and he noted two or three such jobs.

The ALJ concluded that Davis's injury was catastrophic based upon her finding that "Davis' employment prospects are limited to jobs which are specifically tailored to his situation, and these types of situations are not found in the general economy in significant numbers." Carter Mechanical appealed that portion of the ALJ's award. In reversing the ALJ, the State Board found that, despite having suffered a permanent debilitating knee injury, the injury was not of such a nature and severity as to prevent him from performing work available in substantial numbers within the national economy for which he is otherwise qualified. Although Davis had significant restrictions in connection with his injury, the Board found that he was capable of light duty work. Accordingly, the State Board concluded that his injury was not catastrophic, and Davis appealed that finding to the superior court.

The superior court affirmed the award applying the "any evidence" standard. See High Voltage Vending v. Odom, 266 Ga.App. 537, 597 S.E.2d 428 (2004). This Court is bound by the same evidentiary standard and must construe the evidence in the light most favorable to the party prevailing before the State Board. Id. "It is axiomatic that the findings of the State Board of Workers' Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board." (Punctuation and footnote omitted.) Jered Indus. v. Pearson, 261 Ga.App. 373, 582 S.E.2d 522 (2003). Accordingly, we must determine whether the record contains any evidence to support the State Board's conclusions.

1. Davis contends that the evidence was insufficient to support the Board's conclusions because Dye's testimony did not properly address the requirements of OCGA § 34-9-200.1(g)(6). Davis notes that Dye testified only that a substantial number of jobs "exist" in the economy, not that such jobs are "available" as required by the language of the statute. He apparently argues that the statutory language requires not just proof of existing jobs, but rather proof of a substantial number of job openings for which the claimant is otherwise qualified. Davis also asserts that Dye's testimony was insufficient because he never testified that a substantial number of jobs are available in the national economy for which Davis is otherwise qualified, as required by the statute.

This Court previously has noted that OCGA § 34-9-200.1(g)(6) was amended in 1995 in an effort "to eliminate the confusion which had arisen in applying Social Security findings to state workers' compensation proceedings." (Citation omitted.) Cobb County School Dist. v. Barker, 271 Ga. 35, n. 1, 518 S.E.2d 126 (1999). Thus, the General Assembly changed the Act's definition of "catastrophic injury" to adopt language similar to that employed by the Social Security Administration ("SSA") in determining the availability of disability benefits. Id. To qualify for disability under Social Security requires that a person be

not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

(Emphasis supplied.) 42 USC § 423(d)(2)(A).¹

Although the Georgia legislature adopted somewhat different language from that in the federal statute, it is apparent that the amendment was an effort to bring the two provisions in line. In fact, the May 20, 2004 Report of the Governor's Workers' Compensation Review Commission indicates that this amendment "incorporates the definition of total disability used in the federal Social Security system." (Footnote omitted.) Thomas A. Eaton and David B. Mustard, Report of the Governor's Workers' Compensation...