Ready Mix USA, Inc. v. Ross

• Decision Date: 02 July 2012
• Docket Number: No. A11A2173.,A11A2173.
• Citation: 12 FCDR 1036,314 Ga.App. 775,726 S.E.2d 90
• Parties: READY MIX USA, INC., et al. v. ROSS.
• Court: Georgia Court of Appeals

314 Ga.App. 775

726 S.E.2d 90

12 FCDR 1036

READY MIX USA, INC., et al.

v.ROSS.

No. A11A2173.

Court of Appeals of Georgia.

March 14, 2012.

Certiorari Denied July 2, 2012.

Swift, Currie, McGhee & Hiers, Timothy C. Lemke, Jon W. Spencer, Atlanta, for appellants.

Katherine L. McArthur, Leslie L. Cadle, Macon, for appellee.

MILLER, Judge.

Terrell B. Ross injured his back during the course of his employment with Ready Mix USA, Inc. a/k/a Aggregates USA (“Ready Mix”) and filed a claim for workers' compensation benefits. Following a hearing at which Ready Mix and its insurer, Liberty Mutual Insurance Company (“Liberty Mutual”), failed to appear, an administrative law judge (“ALJ”) of the State Board of Workers' Compensation (the “Board”) awarded Ross temporary total disability (“TTD”) benefits, authorized certain medical procedures, and ordered the assessment of attorney fees and litigation expenses in favor of Ross. After the Appellate Division of the Board adopted the ALJ's award, Ready Mix and Liberty Mutual (also collectively referred to as “Appellants”) appealed to the Superior Court of Jones County. As a result of the superior court's failure to enter a timely decision, the Appellate Division's award was affirmed by operation of law.¹ See OCGA § 34–9–105(b). We granted Appellants' application for discretionary appeal. On appeal, Ready Mix and Liberty Mutual contend that the superior court erred in failing to reverse the Appellate Division's adoption of the ALJ's award on the grounds that (1) Appellants were not provided with proper notice of the hearing; (2) the ALJ improperly admitted and considered Ross's medical records; (3) the ALJ improperly denied Appellants' motion to withdraw or amend their admissions; and (4) attorney fees and costs should not have been awarded in the absence of adequate notice. For the reasons set forth below, we affirm.

On appeal from an award of the Appellate Division of the State Board of Workers' Compensation, this Court examines the record to see if there is competent evidence to support the award and construes the evidence in a light most favorable to the prevailing party. Further, 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 [C]ourt has any authority to substitute itself as a fact finding body in lieu of the [B]oard.

(Citation and punctuation omitted.) Harris v. Peach County Bd. of Commrs., 296 Ga.App. 225, 674 S.E.2d 36 (2009).

Construed in the light most favorable to Ross, the evidence demonstrates that Ross was employed by Ready Mix as a maintenance worker. On the day of his injury, December 28, 2009, Ross was using a sledgehammer to swing a heavy ball hooked to a crane when he started feeling pain and tightening in his back. Although Ross immediately reported the injury to his supervisor, he was not provided with Ready Mix's panel of physicians at that time. About a week later, when Ross began to feel pain emanating from his lower back, he again advised his supervisor about the December 28, 2009, injury. At that point, Ready Mix sent Ross for an evaluation, where Ross was diagnosed with lumbar and thoracic back strain caused by his work. The evaluating physician put Ross on restrictive duty at work and prescribed Ross with physical therapy and medication. A few weeks later, Ross selected and began seeing his primary authorized treating physician, who recommended that Ross undergoa cervical MRI. Ross's primary authorized treating physician subsequently referred Ross to an authorized orthopaedic spine specialist for further evaluation and treatment; the orthopaedic spine physician recommended that Ross receive facet injections in his lower back. Ross testified that the orthopaedic spine physician took Ross out of work completely as of May 28, 2010. A work status report completed on May 28, 2010, by the offices of Ross's orthopaedic spine physician indicated that Ross was totally disabled until his next doctor's appointment or pending the Board's approval for facet injections.

Ross requested a hearing and sought authorization of a cervical MRI and lumbar facet injections; TTD benefits beginning May 28, 2010; a 15% penalty for nonpayment; and assessment of attorney fees and litigation costs. Ross also served Ready Mix and Liberty Mutual with written discovery requests, including requests for admissions, interrogatories, and requests for production of documents. Pursuant to the notice of hearing, Ross's claim was heard before the ALJ on July 13, 2010. Neither Ready Mix nor Liberty Mutual appeared at the hearing; nor had they responded to Ross's discovery requests. Ross testified at the hearing that he was unable to work pending further treatment.

Following the hearing, Ready Mix and Liberty Mutual moved to vacate the hearing on the grounds that they were not provided with adequate notice and to also withdraw or amend their responses to Ross's requests for admissions. The ALJ issued a written order denying their motion and specifically finding that Ready Mix and Liberty Mutual were provided with proper notice of the hearing. The ALJ's order also found that Ross was entitled to authorization of a cervical MRI and lumbar facet injections and awarded him TTD benefits in the amount of $500 per week from May 28, 2010, as well as assessed attorney fees and litigation expenses.

[314 Ga.App. 777]1. Ready Mix and Liberty Mutual contend that the superior court erred in failing to reverse the Appellate Division's adoption of the ALJ's award because the record did not show that they were properly served with a hearing notice. We disagree.

“Any notice required by this chapter shall be satisfied by the mailing of the notice to the address of record[.]” OCGA § 34–9–102(i). “Service upon a party or attorney of any form, document, or other correspondence shall be by electronic mail. Whenever electronic mail is not available, service shall be by U.S. Mail.” Rules & Regulations of the State Board of Workers' Compensation, Rule 60(j). This Court has concluded “that mailing notice, via first class mail, is sufficient ... [and, thus,] the failure of a party to actually receive the notice [does not] constitute[ ] a nonamendable defect.” (Punctuation and footnote omitted.) American Mobile Imaging v. Miles, 260 Ga.App. 877, 878, 581 S.E.2d 396 (2003).

Here, the record before the ALJ contained a copy of the “Notice of Hearing” (the “Notice”), which contained the claim number and the names and addresses of the employee, the employer, and insurer, and which stated the time and place of the hearing. The ALJ took judicial notice of the Notice. The hearing record reflects the following statement by Ross's counsel: “We confirmed that the address for the Employer and the address for the Insurer, Liberty Mutual, are the correct addresses, that all notices have been sent to the proper addresses and the Court's notice has been sent electronically to the insurance company properly.” Ross's counsel also indicated that other than the insurance adjuster's authorization of three different doctors to treat Ross, she had received no contact from either Ready Mix or Liberty Mutual in response to Ross's various attempts to obtain discovery and other information. The evidence was closed at the end of the hearing.

In support of their contention that there was no evidence in the record showing that they were provided with proper notice, Ready Mix and Liberty Mutual aver that the ALJ's subsequent written order refers to specific materials that were not submitted at the hearing or otherwise before the evidence was closed. In his findings of fact, the ALJ specifically concluded that the Board's satellite office sent the Notice by electronic mail to Liberty Mutual at its correct e-mail address and by United States Mail to Ready Mix at its correct mailing address; the ALJ also found that the Notice mailed to Ready Mix was not returned. Notwithstanding the ALJ's reliance on additional documents not entered into evidence, we nevertheless construe the other evidence that was properly before the ALJ in the light most favorable to Ross as the prevailing party. See High Voltage Vending v. Odom, 266 Ga.App. 537, 538, 597 S.E.2d 428 (2004). So viewed, we conclude that the Notice itself, along with the statements of Ross's counsel at the hearing, constituted some competent evidence to support the Board's finding that Ready Mix and Liberty Mutual were provided with adequate notice.² Cf. id.;Bailey–Lewis–Williams of Ga., Inc. v. Thomas, 103 Ga.App. 279, 280(2), 119 S.E.2d 141 (1961).

2. Ready Mix and Liberty Mutual argue that the superior court erred in failing to reverse the Appellate Division's adoption of the ALJ's award, asserting that there was no properly admitted medical evidence showing that Ross was totally disabled as a result of his back injury. We disagree.

In all claims for compensation under Georgia's Workers' Compensation Act, the employee must carry the burden of proof and show that he sustained a disabling injury arising out of and in the course of his employment entitling him to compensation. An employee is entitled to total disability benefits under OCGA § 34–9–261 if the employee can show by a preponderance of credible evidence that he or she has experienced a loss of earning capacity due to the injury and not due to the employee's unwillingness to work or to economic conditions of unemployment. The incapacity is total so long as the injured employee, by reason of and on account of his injury, is unable to do any work of any character.

(Citations and punctuation omitted.) Dasher v. City of Valdosta, 217 Ga.App. 351, 352–353(1), 457 S.E.2d 259 (1995). Here, the ALJ found that Ross demonstrated by a preponderance of the credible evidence that his injuries were sustained in an accident on December 28, 2009, that arose out of and in the course of his employment with Ready...