The Home Depot v. Mccreary.

• Decision Date: 16 November 2010
• Docket Number: No. A10A1408.,A10A1408.
• Citation: The Home Depot v. Mccreary., 306 Ga.App. 805, 703 S.E.2d 392 (Ga. App. 2010)
• Parties: The HOME DEPOT et al.v.McCREARY.
• Court: Georgia Court of Appeals

306 Ga.App. 805

703 S.E.2d 392

10 FCDR 3733

The HOME DEPOT et al.

v.McCREARY.

No. A10A1408.

Court of Appeals of Georgia.

Nov. 16, 2010.

Goodman, McGuffey, Lindsey & Johnson, C. Wade McGuffey Jr., Neal B. Childers, Atlanta, for appellants.John E. Kardos, Athens, for appellee.BARNES, Presiding Judge.

Cathy McCreary sought workers' compensation benefits for a “ fictional new injury,” contending that she suffered a closed head injury at work in 2001 but kept working until she could work no longer in June 2003. The ALJ granted her medical benefits for the 2001 injury, but did not address the fictional new injury issue or McCreary's claim for income benefits. Home Depot appealed and the Appellate Division reversed. McCreary appealed to the superior court, which remanded the case to the Appellate Division for further action. We granted Home Depot's application for discretionary review of the superior court's order, and upon review, we affirm.

1. Home Depot argues first that neither the Workers' Compensation Board's Appellate Division nor the superior court had subject matter jurisdiction to consider whether McCreary suffered a fictional new injury in June 2003 because McCreary did not cross-appeal the ALJ's “denial of benefits on the June 27, 2003, date of injury.” McCreary responds that she argued the merits of her June 2003 fictional new injury before both the Appellate Division and the superior court, and Home Depot never raised the jurisdictional issue until its brief before this court. Further, the ALJ did not deny her claim for a fictional new injury; he simply did not address it at all.

Before 1994, an appeal of an ALJ award to the full Board of Workers' Compensation “open[ed] the entire case as a de novo proceeding.” Ga. Dept. of Revenue v. Hughes, 99 Ga.App. 127, 128(1), 108 S.E.2d 184 (1959). “Either party could have urged any question on the appeal that it could have urged in the original trial of the matter before the [ALJ],” id., and therefore a claimant could not dismiss his appeal to the Board when the employer had already argued to the Board that the ALJ erred in part, even though the employer had not cross-appealed. Atlanta Family Restaurants v. Perry, 209 Ga.App. 581, 434 S.E.2d 140 (1993) (physical precedent only).

At that time, OCGA § 34–9–103(a) provided that the Appellate Division considered de novo an appeal from an ALJ award, could hear additional evidence if it chose, and could substitute its own findings of fact if any evidence supported them. In 1994 the legislature rewrote OCGA § 34–9–103(a) to remove the provision allowing the Division to hear additional evidence, and to provide that “the findings of fact made by the [ALJ] in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.” Clinical Arts, etc. v. Smith, 218 Ga.App. 681, 682, 462 S.E.2d 757 (1995).

Thus, the appellate division must weigh the evidence and assess the credibility of witnesses and if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted. But, if after assessing the evidence of record, the appellate division concludes that the award does not meet the statutes' evidentiary standards, the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.

Bankhead Enterprises v. Beavers, 267 Ga. 506, 507, 480 S.E.2d 840 (1997).

Home Depot argues that the 1994 legislation changed the Appellate Division's standard of review from de novo “to an appeal,” quoting from Clinical Arts, etc. v. Smith, supra, 218 Ga.App. at 682, n. 1, 462 S.E.2d 757. This quotation, however, is incomplete. In that case we noted that the Appellate Division could no longer consider additional evidence under the 1994 modification, and thus it appeared that the legislature “intended to alter the nature of appellate review by the Board from that of a strictly de novo proceeding conducted by a Board capable of finding facts by hearing additional testimony, to an appeal to the appellate division, under the new modified scope of review, based on a record established in the trial division.” (Emphasis supplied.) Id.

Neither Great American Indem. Co. v. Wimberly, 96 Ga.App. 588, 100 S.E.2d 593 (1957) nor Dempsey v. Gen. Motors, 102 Ga.App. 408, 116 S.E.2d 509 (1960), requires a different answer. In both cases, we held that the Board as an administrative body lacked subject matter jurisdiction to reconsider a prior award without a timely application for review. Further, we held that this jurisdictional requirement of a timely application could not be waived. We have also held, for example, that the State Board of Workers' Compensation lacks subject matter jurisdiction to consider a fraud claim against an insurance agent, Gulf States Underwriters of La. v. Bennett, 260 Ga.App. 699, 701(1), 580 S.E.2d 550 (2003), and that the superior court lacks subject matter jurisdiction to consider a workers' compensation award after it is affirmed by operation of law because the court failed to hold a hearing or issue a ruling within the time prescribed by OCGA § 34–9–105(b). Truckstops of Am. v. Engram, 229 Ga.App. 616, 617, 494 S.E.2d 709 (1997). None of these situations resembles the one involving this appeal.

Here, Home Depot timely appealed the ALJ's award to the Appellate Division, arguing that the statute had run on the 2001 injury and that the ALJ erred in finding that McCreary suffered a compensable injury on that date and in awarding her benefits. In response, McCreary agreed that the ALJ erred in finding she suffered a compensable injury in 2001, because she dismissed that claim at the hearing, but contended the ALJ made a clerical error in citing the 2001 date instead of the 2003 fictional new injury date. Thus, the issue before the Appellate Division was whether the trial court properly ruled on McCreary's injury date, an issue that arose from both parties' arguments. Accordingly, under its modified scope of review set out in OCGA § 34–9–103(a), the Appellate Division had subject matter jurisdiction to reconsider all of the ALJ's findings. Once it did so, upon a timely application the superior court also had subject matter jurisdiction to consider the appeal.

Further, while Home Depot contends on appeal that it never had an opportunity to raise this jurisdictional argument before now, the record establishes otherwise. The ALJ did not deny benefits on the June 2003 injury; instead, he made no ruling regarding the June 2003 injury claim at all. Confusingly, while the ALJ acknowledged that both parties stipulated the statute of limitation had run on the 2001 injury, he then awarded McCreary benefits for that injury. In its appeal of the ALJ award to the Appellate Division, Home Depot argued that the ALJ erred in awarding benefits for the 2001 injury. In her response, McCreary conceded the statute had run on the 2001 injury but argued she was entitled to benefits beginning with the June 2003 fictional new injury date. Home Depot did not object to the argument or contend that the Appellate Division lacked subject matter jurisdiction to consider McCreary's claim for benefits beginning in 2003.

When she lost before the Appellate Division, McCreary appealed to the superior court, arguing that the Appellate Division erred in finding no evidence of any deterioration in her cognitive function resulting from her continued work activity, and erred in finding she “failed to carry her burden of showing that her work injury was the proximate cause of her cognitive disabilities.” In her brief to the superior court, McCreary argued that she had two injury dates, that she suffered a fictional new injury when she had to quit working in June 2003, and that the ALJ obviously erred in finding she was disabled in 2001 instead of 2003. Home Depot never argued in response that McCreary should have cross-appealed the ALJ's decision or that the superior court lacked subject matter jurisdiction to consider whether McCreary was entitled to benefits from a fictional new injury in June 2003. Instead, it argued the merits of the issue, contending that the ALJ erred in finding McCreary sustained a compensable injury in February 2001 when the parties had stipulated the statute had run on that claim.

In light of the statutes, case law, and facts of this case, we find no merit in Home Depot's argument that the Appellate Division and superior court lacked subject matter jurisdiction to consider McCreary's claim.

2. Home Depot also argues that the superior court erred in vacating the Appellate Division's award and remanding to the Division for further proceedings, because “any evidence” supported the Division's findings. As a factfinder, the Appellate Division is authorized to assess witness credibility, weigh conflicting evidence, and draw factual conclusions different from those reached by the ALJ who initially heard the dispute. Bankhead Enterprises v. Beavers, 267 Ga. at 507.....