Buschel v

Kysor/Warren, 213 Ga. App. 91, 444 S.E.2d 105 (1994); MacKenzie v. Sav-A-Lot Food Store, 226 Ga. App. 32, 485 S.E.2d 559 (1997); Pine Timber Trucking Co. v. Teal, 230 Ga. App. 362, 496 S.E.2d 270 (1998). Motion seeking recommitment on ground of newly discovered evidence properly dismissed. — Motion seeking to have case recommitted to the department (now board) for further hearing because of alleged newly discovered evi- 34-9-105 dence, purpose of which was evidently to procure another hearing or trial before the department (now board), would be declined. Continental Cas. Co. v. Caldwell, 55 Ga. App. 17, 189 S.E. 408 (1936). Remand for taking of additional evidence as to whether injury arose in course of employment. — When award of the board was set aside by the superior court on the ground that the evidence did not authorize the finding that injury to the employee arose out of and in the course of employment, it was within the power of the court to recommit the controversy, under this section, for the sole purpose of the hearing of additional evidence on whether the injury arose out of and in the course of employment, even when additional evidence could have been discovered and presented at the first trial before the board in the exercise of ordinary diligence by claimant. Hartford Accident & Indem. Co. v. Cox, 191 Ga. 143, 11 S.E.2d 661, answer conformed to, 63 Ga. App. 763, 12 S.E.2d 110 (1940). Setting aside of award when only one legal conclusion possible. — When there is no conflict in the evidence, and but one legal conclusion can be reached therefrom, namely, that the accident causing injury to claimant did not arise out of and in course of employment, award by the board granting compensation must be set aside by the court on proper appeal. Aetna Cas. & Sur. Co. v. Fulmer, 81 Ga. App. 97, 57 S.E.2d 865 (1950), later appeal, 85 Ga. App. 102, 68 S.E.2d 180 (1951). Error to refer case back for additional findings when findings supported by competent evidence. — Judge of superior court erred in referring case back to the full board with authority to find facts different from those findings made by the single director (now member or administrative law judge) when the only findings of facts were those of the single director, which were, in effect, approved by the full board; it is the duty of the superior court and appellate court to sustain the findings of facts by the single director if there is any competent evidence to support such findings. Automatic Sprinkler Corp. of Am. v. Rucker, 87 Ga. App. 375, 73 S.E.2d 609 (1952). 700 34-9-105 WORKERS’ COMPENSATION If there are no findings upon which award may be made, judge should remand the case to the board with direction that it hear evidence on the matter. General Accident, Fire & Life Assurance Corp. v. Titus, 104 Ga. App. 85, 121 S.E.2d 196 (1961). Superior court, in reversing an award of the board, may in a proper case enter final judgment upon the findings of fact as made by the board; however, if there are no findings of fact upon which an award may be made, the superior court must remand the case to the board for the purpose of making findings of fact and, when necessary, to hear new evidence. Employees Ins. Co. v. Amerson, 109 Ga. App. 275, 136 S.E.2d 12 (1964). Superior court was without authority to remand award to board for additional findings when there was evidence to support the award. Randall & Lewis Lumber Co. v. Randall, 177 Ga. App. 665, 340 S.E.2d 644 (1986). Courts may not substitute own judgments on facts. — It is improper for the judge of the superior court and the judges of the Court of Appeals to presume to substitute their judgments for the judgment of the deputy director or directors (now members) of the board on the facts of the case, and no ruling can be made by a court on what that judgment should or should not be. Department of Revenue v. Graham, 102 Ga. App. 756, 117 S.E.2d 902 (1960). However strongly the judge of the superior court and judges of the Court of Appeals might feel constrained to disagree with the award of the deputy director (now member or administrative law judge) no power resides in the courts to substitute their judgment for that of the deputy director; the weight and credit to be given to expert testimony is a question exclusively for decision by the fact-finding tribunal. Department of Revenue v. Graham, 102 Ga. App. 756, 117 S.E.2d 902 (1960). Judge of the superior court may reverse the decision of the board on the grounds stated in this section, but may not make findings of fact and enter an award thereon. General Accident, Fire & Life Assurance Corp. v. Titus, 104 Ga. App. 85, 34-9-105 121 S.E.2d 196 (1961). Nothing for judge to base judgment on absent findings by board. — On appeal from decision of the board to the superior court, judge thereof is not vested with any fact-finding power, and hence when the board on its de novo trial of claim for compensation neither adopted deputy director’s (now member’s or administrative law judge’s) findings of fact as its own nor made its own independent findings of fact as it was authorized to do, there was nothing on which judge could base a final judgment awarding compensation to claimant. Pacific Employers Ins. Co. v. West, 213 Ga. 296, 99 S.E.2d 89 (1957). Reversal when award demanded by evidence. — Even though the board held that injury to claimant was not compensable, the superior court judge did not err in reversing that finding on the ground that the evidence demanded a finding that the employee was entitled to compensation under the workers’ compensation law (see now O.C.G.A. § 34-9-1 et seq.). Columbia Cas. Co. v. Parham, 69 Ga. App. 258, 25 S.E.2d 147 (1943). Judge of the superior court did not err in setting aside award denying compensation when claimant was entitled to compensation as a matter of law under the record. Manufacturers Cas. Ins. Co. v. Mansfield, 78 Ga. App. 248, 50 S.E.2d 370 (1948). Recommitment or remand not necessary when findings require denial. — When the findings made require denial of compensation, the case need not be recommitted or remanded to the board, because the findings made eliminate the necessity of considering any further findings. GMC v. Martin, 119 Ga. App. 279, 167 S.E.2d 211 (1969). Authority to render final judgment when question is one of law. — Superior court has jurisdiction and authority on appeal to render final judgment on findings of fact by the board, sustained by evidence, and it is not required that the case be remanded to the board for further action in accordance with the opinion and judgment of that court, when the question is purely one of law and there are no further facts to be determined by the 701 Recommitment, Remand, or Entry of Judgment (Cont’d) board. Georgia Ins. Serv. v. Lord, 83 Ga. App. 28, 62 S.E.2d 402 (1950). Entry of judgment on reversal of award based on erroneous conclusion. — On appeal of claimant from an award made on an erroneous basis, superior court is authorized to enter proper final judgment upon the findings as made. American Mut. Liab. Ins. Co. v. Brock, 35 Ga. App. 772, 135 S.E. 103 (1926), rev’d on other grounds, 165 Ga. 771, 142 S.E. 101 (1928). When award of the board is based on an erroneous conclusion drawn from the facts and the law applicable thereto, it is proper for judge of the superior court to reverse such award and enter such judgment in the case as is proper under the law and the facts as disclosed by the record in the case. Glens Falls Indem. Co. v. Clark, 75 Ga. App. 453, 43 S.E.2d 752 (1947); Automatic Sprinkler Corp. of Am. v. Rucker, 87 Ga. App. 375, 73 S.E.2d 609 (1952); Coulter v. Royal Indem. Co., 95 Ga. App. 124, 97 S.E.2d 358, rev’d on other grounds, 213 Ga. 277, 98 S.E.2d 899 (1957); Crawford W. Long Hosp. v. Mitchell, 100 Ga. App. 276, 111 S.E.2d 120 (1959). Court without authority to render judgment pursuant to lump-sum agreement not approved by board. — When the department (now board) makes an award in favor of claimant for compensation payable in a certain amount weekly during disability, the superior court has no authority or jurisdiction, on appeal, to render final judgment for a lump sum in favor of claimant in full and final settlement of the claim, pursuant to agreement of the parties not approved by the department (now board). Department of Indus. Relations v. Travelers’ Ins. Co., 177 Ga. 669, 170 S.E. 883, answer conformed to, 47 Ga. App. 553, 171 S.E. 169 (1933); Wilkins v. Travelers Ins. Co., 52 Ga. App. 142, 182 S.E. 628 (1935). Superior court has no power to reverse an award of the board based upon sufficient competent evidence, nor to render an award by consent of the parties after they enter into a lump sum settlement without 34-9-105 authority from the board. King v. Fulton Bag & Cotton Mills, 99 Ga. App. 340, 108 S.E.2d 765 (1959). Award may not be set aside because of introduction of hearsay testimony. Sears, Roebuck & Co. v. Griggs, 48 Ga. App. 585, 173 S.E. 194 (1934). Admission of hearsay over a party’s objection would not justify setting aside a finding of the commission (now board) that work was not being done through an independent contractor. Davis v. Menefee, 34 Ga. App. 813, 131 S.E. 527 (1926). Precise deficiencies to be pointed out in recommitting case. — When superior court, in reviewing the findings of the commission (now board), recommits the controversy to the commission (now board) for further hearing or proceedings, it is essential that the judgment be accompanied by an opinion directing the attention of the commission (now board) to the precise errors to be cured or the precise deficiencies to be supplied upon reconsideration of the case. Austin Bros. Bridge Co. v. Whitmire, 31 Ga. App. 560, 121 S.E. 345 (1924). Judgment recommitting case sufficiently indicated question for determination on another hearing before commission (now board) when it recited that the evidence was insufficient to establish dependency for a period of three months prior to the injury and was not sufficiently definite and clear as to expense of last illness and funeral bills and directed the commission (now board) to receive testimony as to these amounts. Maryland Cas. Co. v. Bartlett, 37 Ga. App. 777, 142 S.E. 189 (1928). Board confined by specific instructions of court on recommitment. — When, on appeal, superior court recommits a case to the department (now board) for a further hearing, with specific instructions as to the scope and character of the new hearing, this judgment confines the department (now board), upon another hearing of the case, to a determination of the questions directed by the court. Woodruff v. Miller, 48 Ga. App. 305, 172 S.E. 738 (1934). Award properly upheld. — When order of the commission (now board) denying compensation was not erroneous upon 702 34-9-105 WORKERS’ COMPENSATION a given ground and was not affected by an erroneous finding as to lack of notice, it would be sustained irrespective of any error affecting a finding that there was a lack of notice. Maryland Cas. Co. v. England, 34 Ga. App. 354, 129 S.E. 446 (1925). When findings of fact by the board were not inconsistent, supported the award, and were themselves supported by evidence, superior court did not err in denying an appeal from the board’s award of death benefits to claimant. American Mut. Liab. Ins. Co. v. King, 88 Ga. App. 176, 76 S.E.2d 81 (1953). Remand or reversal held improper. — When there was evidence authorizing finding by the board that there had been no change in claimant’s physical condition since a previous award of compensation, and there were facts and circumstances which authorized the board to determine that claimant was justified in refusing to submit oneself to another examination by a physician, the superior court erred in setting aside the finding and award of the board and remanding the case to the board with instructions that payments of compensation to claimant be suspended until claimant complied with the employer’s request to submit to examination. Daniel v. Ford Motor Co., 88 Ga. App. 58, 76 S.E.2d 66 (1953). When there is some evidence to support determination of the board that condition of claimant has improved to the extent that claimant is no longer entitled to compensation, the action of the superior court on appeal in reversing the award of the board is unauthorized. Sinclair Oil Corp. v. Hendrix, 119 Ga. App. 770, 168 S.E.2d 862 (1969). Denial of compensation properly set aside. — Denial of compensation for the death of an employee, when the evidence was that death resulted from tuberculosis which the employee had in a latent stage, but which flared into activity as a result of an injury arising out of and in the course of employment, was properly set aside by the superior court. United States Fid. & Guar. Co. v. Maddox, 52 Ga. App. 416, 183 S.E. 570 (1935). Reversal of judgment when not supported by evidence. — Judgment of the superior court affirming award of the 34-9-105 commission (now board) in a case when the evidence failed to show that death of deceased arose out of and in course of employment would be reversed upon appeal to the Court of Appeals. Georgia Cas. Co. v. Kilburn, 36 Ga. App. 761, 138 S.E. 257 (1927). Remand for further consideration held proper. — When hearing director (now administrative law judge) applied strict rules covering compensation for hernia cases, whereas deceased died of coronary occlusion, and did not show relationship between accident and operation on one hand and operation and coronary occlusion on the other, hearing director made a mistake in considering the facts, and it was within the jurisdiction of the appellate court to remand the case to the board for further consideration. Parks v. American Fid. & Cas. Co., 97 Ga. App. 833, 104 S.E.2d 624 (1958). Remand for proper findings required. — When finding of a single director (now member or administrative law judge) that the director did not know what blinded claimant but that it had its beginning in an accident and injury sustained in the course of employment and resulting in total loss of an eye was not supported by other findings of facts, the superior court erred in failing to sustain appeal of insurance carrier on ground that the facts found did not support the award, and in failing to remand the case to the full board to make proper findings of fact based on the evidence. Fireman’s Fund Indem. Co. v. Peeples, 97 Ga. App. 896, 104 S.E.2d 664 (1958). Remand for introduction of new evidence improper absent motion. — Superior court did not err in failing to remand an appeal to the full board for introduction of new evidence by the employer when it did not appear on the record that any motion to that effect had been made. Insurance Co. of N. Am. v. Nix, 141 Ga. App. 342, 233 S.E.2d 468 (1977). Case was remanded for further proceedings when the superior court erred in substituting its findings of fact for those of the full board so as to mandate an ultimate award in favor of the employee. Department of Pub. Safety v. Boatright, 188 Ga. App. 612, 373 S.E.2d 770 (1988). 703 Recommitment, Remand, or Entry of Judgment (Cont’d) Remand not warranted by insignificant factual misstatements. — Factual misstatements contained in the award regarding the results of an electromyelogram (EMG) study and the date when surgery was performed were not of such significance as to warrant a remand. Chevrolet-Pontiac-Canada Group, GMC v. Millar, 182 Ga. App. 889, 357 S.E.2d 598 (1987). Award of attorney’s fees held unsupported by evidence. — It is error for the board to treat an award for temporary total disability as though it were for permanent total disability and to award as attorney’s fees in a lump sum the final one-third of the maximum benefits which could possibly accrue, as it is possible that compensation awarded as attorney’s fees might never become due; hence, the court would hold that the award of attorney’s fees in the lump sum was without evidence to support it. Hartford Accident & Indem. Co. v. Fuller, 102 Ga. App. 384, 116 S.E.2d 628 (1960). Appellate division properly substituted its own findings. — Judgment setting aside the appellate division’s decision was reversed because as to the medical benefits issue, the appellate division found that the ALJ’s award did not meet the evidentiary standards of O.C.G.A. § 34-9-103(a) due to lack of evidence of disability, substituted the court’s own alternative findings, and ruled that the claimant was not entitled to ongoing medical benefits, which findings could not be disturbed since there was evidence to sup- 34-9-105 port the findings. J&R Schugel Trucking, Inc. v. Logan, 336 Ga. App. 899, 785 S.E.2d 581 (2016). Supersedeas Only effect of supersedeas under this section was to divest the board of jurisdiction with respect to enforcement of the judgment appealed from, so that pending adjudication in the Court of Appeals of the issue, any attempted exercise of jurisdiction affecting the rights of the parties as determined by the judgment appealed from is coram non judice and void. Ingram v. Liberty Mut. Ins. Co., 63 Ga. App. 493, 11 S.E.2d 499 (1940). With respect to particular issue determined. — Pending appeal, supersedeas provided by this section related only to suspension of jurisdiction with respect to the particular issue determined by the judgment appealed from. Ingram v. Liberty Mut. Ins. Co., 63 Ga. App. 493, 11 S.E.2d 499 (1940). Application based on change in condition since hearing not precluded by pendency of appeal. — Pendency in the Court of Appeals of appeal from judgment of the superior court affirming the board in denying an increase in compensation on account of an alleged change in condition since original award does not deprive the board of jurisdiction to entertain another application from claimant for additional compensation on account of a change in condition arising since the hearing upon which the award appealed from was based. Ingram v. Liberty Mut. Ins. Co., 63 Ga. App. 493, 11 S.E.2d 499 (1940).