Russ v. American Telephone & Telegraph

493 S.E.2d 46, 228 Ga. App. 858, 97 Fulton County D. Rep. 3874, 1997 Ga. App. LEXIS 1299

• Court: Court of Appeals of Georgia
• Decided: October 21, 1997
• Docket: A97A1043
• Status: Published

Opinions

Smith, Judge.

In this appeal, claimant Nancy Russ contends that the superior court applied an improper standard of review when it reversed the substituted findings of the appellate division of the State Board of Workers’ Compensation. We agree and reverse.

The ALJ found that Russ suffered a compensable injury to her back in April 1991 while working as a senior technical assistant with AT&T. She returned to work on a half-day basis in April 1993 and on a full-time basis in August 1993. On March 31, 1994, Russ was laid off. She subsequently sought total disability benefits due to a change in condition. AT&T opposed the claim. The ALJ denied Russ’s claim, finding that Russ did not meet her burden of proving that she made a diligent search for suitable employment and therefore failed to prove that she had undergone a change in condition for the worse under the standard of Maloney v. Gordon County Farms, 265 Ga. 825, 827 (462 SE2d 606) (1995). The appellate division, however, substituted an award of temporary total disability benefits, finding that Russ proved “by a preponderance of the evidence that she has made a diligent unsuccessful job search following her layoff from AT&T, that she continues to suffer physical limitations attributable to her compensable injury, and that she suffers a loss of earning power as a result of that injury.” The superior court then reversed the appellate division, concluding that the ALJ’s findings on the issue of Russ’s failure to make diligent efforts to find employment were supported by a preponderance of the competent and credible evidence. This appeal by Russ ensued.

OCGA § 34-9-103 (a) sets out the standard to be employed by the appellate division when reviewing findings of fact made by an ALJ: those findings “shall be accepted by the appellate división where such findings are supported by a preponderance of competent and credible evidence contained within the records.” Id. The role of the appellate division, as directed by OCGA § 34-9-103, was recently clarified in Bankhead Enterprises v. Beavers, 267 Ga. 506 (480 SE2d 840) (1997). The Supreme Court held that OCGA § 34-9-103 (a) permits the appellate division to vacate an ALJ’s findings of fact and conclusions of law when they are unsupported by a preponderance of the competent and credible evidence and to substitute alternative findings. According to Beavers, “[t]he 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. [Cits.]” Id. at 507.

Once the appellate division has made an award, the scope of a superior court’s review of the appellate division’s findings is limited. It is bound by the “any evidence” standard of review and is not authorized to substitute its findings for those made by the appellate division or to substitute its judgment concerning the weight of evidence or credibility of witnesses. Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997). Under this standard, the trial court’s role is not to “return to the original findings of the ALJ and evaluate whether that decision was supported by a preponderance of the evidence, but to review the appellate division’s order and make a determination as to whether it is supported by any evidence.” Id. Even if the appellate division’s reweighing of the evidence resulted in a conclusion differing from that of the ALJ, the superior court must affirm the appellate division if there is any evidence to support its conclusion. Id.

Here, the appellate division found that Russ was capable of performing only sedentary work because of her injury and that she applied for and interviewed for several jobs within her physical restrictions. The appellate division further found that while Russ was not qualified for positions with AT&T for which she applied, Russ did apply and interview for jobs with other employers, and she sent resumes to employers whose names were provided by a rehabilitation counselor. The appellate division apparently relied on this evidence to find that Russ had met her burden of proving by a preponderance of the evidence that she had made a diligent job search. Although the evidence was in conflict as to the issue of Russ’s job search, and the appellate division would have been authorized to affirm the findings of the ALJ, some evidence of record was presented supporting the substituted findings made by the appellate division. Consequently, we are bound under the “any evidence” standard to uphold the award of the appellate division and to reverse the decision of the trial court reinstating that of the ALJ. See Hathorn, supra; Bankhead Enterprises, supra; accord Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 138-139 (1) (473 SE2d 166) (1996).

Judgment reversed.

Beasley, J., concurs specially. Birdsong, P. J, concurs in the judgment only. McMurray, P. J., disqualified.