FULTON COUNTY BD. OF EDUC. v. Taylor

• Court: Georgia Court of Appeals
• Writing for the Court: SMITH, Chief.
• Citation: FULTON COUNTY BD. OF EDUC. v. Taylor, 586 S.E.2d 51, 262 Ga. App. 512 (Ga. App. 2003)
• Decision Date: 10 July 2003
• Docket Number: No. A03A0729.,A03A0729.
• Parties: FULTON COUNTY BOARD OF EDUCATION v. TAYLOR.

586 S.E.2d 51

262 Ga. App. 512

FULTON COUNTY BOARD OF EDUCATION v. TAYLOR.

No. A03A0729.

Court of Appeals of Georgia.

July 10, 2003.

Reconsideration Denied July 25, 2003.

McLain & Merritt, Thomas C. Holcomb, Clayton E. Robertson, Atlanta, for appellant.

Clements & Sweet, Lawrence T. Clements, for appellee.

SMITH, Chief Judge.

Nathaniel Taylor, Jr., the claimant in this workers' compensation case, was employed by the Fulton County Board of Education when he received a compensable injury to his shoulder and neck on October 21, 1999. Medical treatment for Taylor's injuries was commenced, and he returned to work performing light duty activities.

On February 7, 2000, as an alternative to involuntary termination of his employment with the Fulton County Board of Education, Taylor chose to resign. The termination of employment was not related to the compensable injury. Thereafter and through the hearing date, Taylor did not obtain suitable employment.

Taylor is seeking temporary total disability benefits from February 7, 2000, payment of certain medical bills, penalties, and attorney fees. Based on findings that Taylor had conducted a diligent search for work from May 22, 2000, through April 30, 2001, and that Taylor was totally disabled due to his work-related injuries from May 1, 2001, the administrative law judge awarded payment of temporary total disability benefits from May 22, 2000, to the present and continuing into the future. The ALJ also directed payment of attorney fees and certain medical expenses.

The appellate division substantially revised the factual findings and partially reversed the ALJ's award. Based on findings that the preponderance of the credible medical evidence shows that Taylor was capable of light duty work since his termination of employment on February 7, 2000, and that Taylor did not conduct a diligent job search, the appellate division denied the request for temporary total disability benefits and attorney fees. While the appellate division retained that portion of the ALJ's award requiring payment of certain medical expenses, the rationale supporting this provision was changed.

Both parties appealed the appellate division decision to the superior court. The superior court remanded the case with direction that three questions requiring factual findings be answered and that the award be changed as deemed necessary based on the answers. This court granted the Fulton County Board of Education's application for discretionary appeal.

1. We first address whether this court has jurisdiction to entertain this appeal.

The superior court's order did not explicitly affirm, reverse or take any other action with respect to the decision of the full board other than remanding the case. Under OCGA § 34-9-105(d), "upon the setting aside of any such decision of the board, the superior court may recommit the controversy to the board for further hearing or proceedings in conformity with the judgment and opinion of the court." In Maczko v. Employers Mut. &c. Ins. Co., 116 Ga.App. 247, 157 S.E.2d 44 (1967), we held that under OCGA § 34-9-105 " the superior court must affirm the award unless it is set aside on one or more of the statutory grounds stated therein. The order of the court remanding the case to the board, in the absence of setting aside the award on one of the statutory grounds, was therefore unauthorized. The trial court having divested itself of jurisdiction in the matter by this action, however, this court has jurisdiction on appeal from such order, and in the posture presented on appeal will examine the record to determine whether there is any competent evidence to support the award." Similarly, in Ga. Cas. &c. Co. v. Bloodworth, 120 Ga. App. 313, 170 S.E.2d 433 (1969), we held that an order by the superior court "remanding the case to the board for additional findings of fact had the effect of setting aside the award denying compensation and since it did not purport to retain jurisdiction of the case, it was a final appealable judgment." See Turner v. Baggett Transp. Co., 128 Ga.App. 801, 803, 198 S.E.2d 412 (1973).

(Citations and punctuation omitted.) Pitts v. Gofer Courier Svc., 216 Ga.App. 219, 220(1), 453 S.E.2d 505 (1995).

Even though in remanding the case the superior court did not explicitly set aside the appellate division's award, the order had the effect of setting aside the award, and the superior court did not purport to retain jurisdiction of the case. We have jurisdiction to review the record to determine if there was a basis for the appellate division's decision.

2. The first and third enumerations of error submitted by the Fulton County Board of Education seek a determination that portions of the appellate division award, holding that Taylor is not entitled to total disability benefits or attorney fees, are supported by application of the "any evidence" rule and should not have been set aside in substance by the superior court. These portions of the appellate division award are predicated on findings that Taylor has been capable of light duty work since the date of his termination of employment on February 7, 2000, and that Taylor failed to conduct a diligent search for employment at any time.

The ALJ rejected the expert medical opinion of Dr. Koffler dated January 17, 2000, that Taylor could return to regular duty work and Dr. Tatum's determination during the summer of 2001 that Taylor was capable of regular duty work. The appellate division's determination concerning Taylor's physical capabilities following his termination necessarily means that it agreed with the ALJ's rejection of these doctors' opinions and also that it rejected Dr. Halleck's opinion on May 1, 2000, that Taylor was totally disabled.

The rejection of these medical opinions was within the authority of the appellate division, which is not absolutely bound to accept such expert opinions even when uncontroverted. City of Marietta v. Kirby, 210 Ga.App. 566, 569(1), 436 S.E.2d 762 (1993); Atlanta Hilton & Towers v. Gaither, 210 Ga.App. 343, 346(2), 436 S.E.2d 71 (1993). Here, the appellate division was authorized to consider all of the evidence and determine that there was no change...