Georgia Dept. of Human Resources v. Holland, 49853

• Decision Date: 04 December 1974
• Docket Number: No. 2,No. 49853,49853,2
• Citation: 133 Ga.App. 616,211 S.E.2d 635
• Parties: GEORGIA DEPARTMENT OF HUMAN RESOURCES v. Annie D. HOLLAND
• Court: Georgia Court of Appeals

Page 635

211 S.E.2d 635

133 Ga.App. 616

GEORGIA DEPARTMENT OF HUMAN RESOURCES v. Annie D. HOLLAND.

No. 49853.

Court of Appeals of Georgia, Division No. 2.

Dec. 4, 1974.

Rehearing Denied Dec. 19, 1974.

Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Executive Asst. Atty. Gen., Don A. Langham, Timothy J. Sweeney, R. Douglas Lackey, Asst. Attys. Gen., Atlanta, for appellant.

Jay, Garden & Sherrell, John Edward Smith, III, Fitzgerald, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

Annie D. Holland applied to the Georgia Department of Human Resources (department), through the Ben Hill County Department of Family and Children Services (county), for public assistance, contending permanent and total disability. The county denied her application. Mrs. Holland then asked for and received a de novo consideration of her claim of disability at a hearing held on April 17, 1973. At the conclusion of the testimony, on motion by Mrs. Holland's attorney, the hearing was adjourned and the record left open for additional evidence.

In his report the hearing officer made the following specific findings: '1. The disability as stated by the claimant is that she gets dizzy and cannot bend, stoop or lift, and that she wakes up during the night short of breath, and the doctor has told her that she has asthma. 2. The narrative type report under the date of 5/1/73 over the signature of Dr. Ahmad Shafik Mahayni, while making a finding of asthmatic attacks (which are frequent), peptic ulcer syndrome, nervousness and tachycardia should be susceptible to control with proper medication and treatment, therefore, there are no clinical findings on which to base a finding of permanent and total disability. 3. Correspondence received 5/9/73 from Gary D. Smith, Caseworker I, shows that the claimant has not responded to their letter nor has she met with the VRD counselor. Therefore, it must be presumed that she has refused efforts to rehabilitate and treat her, and for this reason she is ineligible.' The hearing officer then concluded that Mrs. Holland 'is not entitled in every respect to a public assistance grant under Aid to the Disabled Program.' The report of the hearing officer was adopted by the department on May 15, 1973, 28 days after the date of the hearing. Mrs. Holland appealed the department decision to the Superior Court of Ben Hill County, which reversed the department, from which judgment the department appeals.

1. The first question to be resolved is whether the department's decision was 'clearly erroneous' as defined in Code Ann. § 3A-120(h 5) (Ga.L.1964, pp. 338, 354). A similar phrase and standard is applied to findings of fact by trial courts sitting without a jury. Code Ann. § 81A-152(a) (Ga.L.1969, pp. 645, 646; 1970, pp. 170, 171). To our knowledge, 'clearly erroneous' under § 3A-120(h 5), has not been construed. However, the phrase as used in Code Ann. § 81A-152(a) has been construed several times. Essentially all constructions compare the finding of fact to the verdict of a jury or findings of the State Board of Workmen's Compensation, and uniformly agree that they are binding on appeal unless wholly unsupported. See Spivey v. Mason, 124 Ga.App. 775, 186 S.E.2d 154; Dept. of Transportation v. Livaditis, 129 Ga.App. 358, 362, 199 S.E.2d 573. In Pinkerton & Laws Co. v. Atlantis Realty Co., 128 Ga.App. 662, 665, 197 S.E.2d 749, 'clearly erroneous' was stated to be the 'any evidence...